Dr Sharanya Mohan vs The State Of Karnataka

Conglomeration of these cases call in question (i) notification

dated 08-06-2021 whereby every candidate who joins MMBS in

Karnataka State under the Government quota and who graduate in

the year 2021 will have to undergo compulsory service and will

have to execute a compulsory bond as a part of compulsory service

in the allotted Government hospitals selected and posted on the

basis of merit through a process of counseling and (ii) a

corrigendum dated 17-06-2021 issued later, whereby Rule 11 of the

Karnataka Selection of Candidates for admission to Government

seats in Professional Educational Institutions Rules, 2006 ('2006

Rules' for short) comes to be amended, directing all candidates who 123

get admitted to MBBS Course under Government quota in any of

the medical colleges run by the Government of Karnataka or

Government seats in private medical colleges who have completed

MBBS course including internship, shall serve the Government,

failing which, the students would be punished with a fine of not less

than `15/- lakhs which may extend up to `30/- lakhs. Calling in

question the aforesaid - notification and its corrigendum, the

petitioners have also sought a string of directions by issuance of a

writ in the nature of mandamus. One such prayer is to annul by

declaration all bonds executed by the petitioners pursuant to Rule

11 of the aforesaid 2006 Rules. The facts giving rise to the

challenge in all these cases are identical and, therefore, the facts

obtaining in Writ Petition No. 10079 of 2021 are noticed for the

sake of brevity.

2. Heard Sri.B.C.Thiruvengadam, learned senior counsel along

with Sri.Manik.B.T., learned counsel, appearing for petitioners in

W.P.No.7435 of 2021 and W.P.No.10079 of 2021 and learned senior

counsel Sri K.G.Raghavan in few of the cases; Sri.Brijesh Singh.M.,

learned counsel appearing for petitioners in W.P.No.10297 of 2021;

124 Sri.Girishkumar R., learned counsel appearing for petitioners in

W.P.No.10374 of 2021 and W.P.No.2137 of 2022;

Sri.Ramananda.A.D., learned counsel for petitioners in

W.P.No.10379 of 2021, Sri.Akash V.T., learned counsel appearing

for petitioners in W.P.No.10381 of 2021; Sri. Vivekananda.S.,

learned counsel appearing for petitioner in W.P.No.10751 of 2021;

Smt. Shreya S.Kumar, learned counsel for petitioners in

W.P.No.13569 of 2021. Sri.M.N.Kumar, learned Central

Government Counsel appearing for Union of India,

Sri.R.Subramanya, learned Additional Advocate General along with

Smt.Pramodhini Kishan, learned Additional Government Advocate

appearing for the State; Sri.N.Khetty, learned counsel appearing for

National Medical Council, Sri.N.K.Ramesh and Sri.M.S.Devaraju,

learned counsel appearing for Rajiv Gandhi University of Health and

Sciences; Smt.Ratna N.Shivayogimath, learned counsel appearing

for Karnataka Medical Council and Sri.R.Subramanya, learned

counsel appearing for Dr.B.R.Ambedkar Medical College and

Hospital, Bengaluru.

125 3. Certain undisputed facts are, that all the petitioners in

these petitions participate in the Karnataka Common Entrance Test

('KCET' for short) conducted between 12-05-2015 and 13-05-2015.

The results of the said test were announced on 31-05-2015. The

petitioners have all secured admission to MBBS course in various

medical colleges both of Government and private medical colleges

under Government quota. Therefore, the undenial fact is that the

petitioners are students who secured seats in Government colleges

and in private colleges under Government quota. All these

petitioners were sought to complete their courses in the year 2019-

2020. Certain developments took place from the date they were

allotted to certain medical colleges to pursue their career in MBBS.

On 24-07-2015, the Karnataka Compulsory Service by Candidates

Completed Medical Courses Act, 2012 and Rules, 2015 ('2012 Act'

and '2015 Rules' for short) are brought into force on the same day.

The 2012 Act and the 2015 Rules were brought into force at the

time when the Indian Medical Council Act was in existence and all

the nuances of the career and the aftermath of the petitioners were

governed by the Indian Medical Council Act, 1956.

126 4. On 08-08-2019 the Indian Medical Council Act, 1956 gets

repealed and the Medical Council of India gets dissolved. On the

same day, another enactment comes into force i.e., 'National

Medical Commission Act, 2019'. The petitioners, on completion of

the course, are directed to serve compulsory service with the

Government in the allotted hospitals according to their merit. It is

at that point in time the present petitions are preferred.

Submissions of the learned counsel for the petitioners, at the

interim stage, were made in extenso and a co-ordinate Bench of

this Court on 20-07-2021, by a detailed order, refused to stay the

challenge to the notification and corrigendum and directed that the

petitioners should abide by the conditions stipulated under the

notification and the corrigendum. The matters were then taken up

for their final disposal with the consent of parties.

5. The learned senior counsel representing the petitioners in

unison have made three fold submissions. The State Government

does not have legislative competence to notify Rule 11 of the 2006

Rules. The 2012 Act runs repugnant to the National Medical

Commission Act, 2019, a Central enactment and on such 127

repugnancy the National Medical Commission Act, 2019 ('NMC Act'

for short) would prevail over the State enactment. The bonds that

are executed by the petitioners at the time when they joined

medical courses were all bonds that were executed at the time

when they were not even 18 years old and, therefore, the bonds

are unenforceable; the bond that is sought under the amended Rule

11 was never notified and, therefore, the bond under the amended

Rule 11 is illegal.

5.1. Elaborating the aforesaid folds, the learned senior

counsel Sri B.C. Thiruvengadam who has sphere headed the

arguments in the cases, contends that when NMC Act is an Act of

the Parliament and the Act of 2012 supra being a State legislation,

it is hit by repugnancy, as the 2012 Act which contemplates

registration of candidates on the State register for completion of

compulsory rural service should give way to the NMC Act, which

specifically lays down that any person who qualifies in the National

Exit Test as contemplated under Section 15 of the NMC Act, is

entitled for a license to practice medicine and has a choice to get

enrolled either as a Doctor under the National register or State 128

register. When the NMC Act, 2019 permits such registration

without any condition, the 2012 Act of the State imposing condition

of completion compulsory rural service is void. He would contend

that the students who have registered on the State register cannot

practice medicine under the 2012 Act without completion of

compulsory rural service. But, certain persons under the NMC Act

are entitled to a license and registration either on the State register

or the National register and are entitled to practice the moment

they get qualified by passing National Exit Test under Section 15 of

the NMC Act. The submission is that the 2012 Act of the State

percolates into 2019 NMC Act, an Act of parliament and would

prevail and not the earlier enactment of the State.

5.2. The learned senior counsel would further take this Court

through the documents appended to the petitions to contend that

inconsistencies galore between the legislations - the State Act of

2012 and the NMC Act, 2019. He would take this Court to sub-

section (4) of Section 3 of the 2012 Act of the State to contend that

it is contrary to Section 33(1) of the NMC Act, 2019, as according to

him the National Exit Test under Sections 15 and 33 of the NMC Act 129

would override 2012 Act of the State. The learned senior counsel

would further contend that 2006 Rules including the amended Rule

11 are illegal, as they are beyond the legislative competence of the

State Government under sub-section (1) of Section 14 of the

Capitation Fee Act, 1984. He would contend that Rule 11 of the

2006 Rules is erroneous, as it contemplates imposition of penalty

on the students or parents of the students and it runs counter to

Section 14 of the Parent Act, which empowers the rule making

authority to make Rules to regulate educational institutions

charging exorbitant capitation fee and to provide adequate seats for

students of Karnataka. He would contend that the Rule nowhere

regulates the charging of capitation fee, but depicts penalty for

non-acceptance of completion of rural service. It is, therefore, his

contention that the Rules have no legal legs to stand.

5.3. The further submission of the learned senior counsel is

that the bonds are sought from the hands of the petitioners to be

compulsorily executed at the time of their admission by the

students under the amended Rule 11. The amendment comes about

pursuant to a notification dated 17-07-2012. The notification itself 130

directs that the Rule would come into effect after its publication in

the Official Gazette. It is his allegation that the Rule is not

published in the Official Gazette as on the date, on which the

petitioners in all these cases have either executed the bonds or

have completed their education and, therefore, the learned senior

counsel submits that the bonds that are executed are sought to be

quashed.

6. On the other hand, the learned Additional Advocate

General Sri R.Subramanya would vehemently refute every one of

the submissions by seeking to contend that all these issues have

already been gone into by a co-ordinate Bench of this Court in

BUSHRA ABDUL ALEEM v. GOVERNMENT OF KARNATAKA1 and

all these contentions have been negatived by the co-ordinate

Bench. It is his contention that the Notification of 8-06-2021 issued

under 2006 Rules cannot be questioned by the petitioners as at the

relevant point in time, the Government quota students formed a

different class against other class of students and later by the 2012

enactment, all the students irrespective of Government or private

1 ILR 2020 KAR 963 131

have been brought under the ambit of 2012 Act. Since the State

has made compulsory service uniformly applicable to one and all, it

cannot be struck down on the ground that it is arbitrary; manifestly

arbitrary or discriminatory. He would contend that Rule 11 of the

2006 Rules has been notified under Section 14 of the Capitation Fee

Act. The Act permits the Government to regulate by Rules the

purposes of the Act. One such purpose of the Act, according to the

State, is the one that is notified in the year 2006. There are several

notifications under 2006 Rules. Regulation of admission in

educational institutions is what Section 14 of the Capitation Act

contemplates and, therefore, Rule 11 falls within the ambit of

Section 14 as it seeks to regulate admission to educational

institutions. Therefore, it cannot be said that Rules of 2006 or

amended Rule 11 would lose its legal legs to stand.

6.1.1. Insofar as legislative competence is concerned, the

learned Additional Advocate General would seek to rely upon entry

25 in List-III of Seventh Schedule to the Constitution of India to

contend that education is regulated by the State in terms of power 132

under Entry 25 and, therefore, it cannot be said that the State has

no legislative competence to bring in the Rules.

6.1.2. Insofar as the much argued issue of repugnancy is

concerned, the learned Additional Advocate General would again

rely on the judgment of the co-ordinate Bench in BUSHRA ABDUL

ALEEM (supra) to contend that the issue of repugnancy has also

been gone into by the co-ordinate Bench and it would not lie with

the petitioners to repeatedly contend repugnancy, notwithstanding

the fact that it has been negatived once. Without prejudice to the

said submission, the learned Additional Advocate General would

submit that there is no repugnancy at all. According to the learned

Additional Advocate General there was no provision in the Act of

Parliament viz., Indian Medical Council Act or no provision in the

National Medical Commission Act, 2019 which would touch upon

compulsory rural service and execution of bonds for the said rural

service. Therefore, the theory of occupied field would not become

applicable to the cases at hand, as the field is not occupied by an

Act of Parliament.

133 6.1.3. Insofar as imposition of execution of bonds by the

petitioners as a condition for admission to medical colleges is

concerned, it would not be violative of Articles 14, 19(1)(g) or 21 of

the Constitution of India. The learned Additional Advocate General

would contend that the bond that is executed is in the nature of

contract between the parties and they are bound by it. He would

contend that identical legislation introduced by the State of Madhya

Pradesh did fall for consideration before the Apex Court in Dr.

VAIBHAV YAWALKAR v. UNION OF INDIA2 and would seek to

place reliance upon the judgment of the Apex Court in the case of

ASSOCIATION OF MEDICAL SUPERSPECIALITY ASPIRANTS

AND RESIDENTS v. UNION OF INDIA3. He would contend that

the petitions are hit by delay and laches and the petitioners have

taken admission under the Government quota in the year 2015-16

and have chosen to prefer these writ petitions in the year 2021. If

the petitioners were aggrieved by the execution of bonds executed

in the year 2015-16, they ought to have called that in question in

the year 2015 itself and not after six years. In defense of the

allegation that the bonds are executed under an amended rule 2 2019 SCC OnLine MP 5436 3 (2019) 8 SCC 607 134

which is never notified, the learned Additional Advocate General

would contend that though the amendment to Rule 11 under the

2006 Rules was notified on 08-06-2021, the petitioners were made

aware of the notification and, therefore, they cannot contend that

merely because the notification is not immediately gazetted it would

not affect the validity of the notification since the petitioners were

at all times aware that compulsory rural service is a necessity at

the time when they exit on completion of MBBS course. For every

submission supra, the learned Additional Advocate General has

placed reliance upon several judgments and those relevant to the

issue would bear consideration in the course of the order.

7. In reply to the submissions made by the learned Additional

Advocate General, the learned senior counsel for the petitioners

would again in unison contend that the issue before this Court in

BUSHRA ABDUL ALEEM (supra) was a judgment rendered

considering the Indian Medical Council Act, 1956 as at that point in

time when the matters were decided on 30-08-2019 the Act of

2019 was yet to receive its Presidential assent and therefore, the

judgment would not become applicable to the facts of the case at 135

hand, as there is a sea change in the Indian Medical Council Act and

the National Medical Commission Act, 2019. They would therefore,

contend that the issue will have to be dealt with all over again qua

National Medical Commission Act without reference to the Indian

Medical Council Act, 1956. To buttress their submission, they have

also relied on several judgments of the Apex Court and that of co-

ordinate Benches of this Court which would again bear

consideration qua their relevance in the course of the order.

8. I have given my anxious and thoughtful consideration to

the elaborate submissions made by both the learned senior counsel,

the learned Additional Advocate General and all the learned counsel

in the lis. In furtherance whereof, the following issues fall for my

consideration:

"(i) Whether the State lacks legislative competence to enact the impugned Act?

(ii) Whether 2012 Act is hit by repugnancy qua NMC Act, 2019?

(iii) Whether imposition of compulsory rural service and execution of bond under the amended Rule 11 of the 2006 Rules are valid in law?"

In seriatim these issues would be considered.

136 ISSUE NO.1:

(i) Whether the State lacks legislative competence to

enact the impugned Act?

9. As observed hereinabove the co-ordinate Bench of this

Court in BUSHRA ABDUL ALEEM supra considers the very issue,

whether the State lacked legislative competence in enacting the

2015 Rules on the ground of discrimination, manifest arbitrariness,

unworkability or proportionality - all would fall under the sweep of

Article 14 of the Constitution of India, as the contentions now

advanced are that the Rule takes away the right to profession

guaranteed under Article 19(1)(g) of the Constitution of India. The

co-ordinate Bench answering the said contention and the issues has

held as follows:

"15. As to the socio-historical background of prescribing compulsory medical service:

(i) For determining the purpose or object of the legislation in challenge, it is permissible and desirable to look into the circumstances and the social conditions which prevailed at the time when the law was enacted and which necessitated such enactment; this is important for the purpose of appreciating the background and the antecedent factual matrix that lead to the legislative 137

process resulting into the enactment; even to sustain the presumption of constitutionality, the Apex Court states, consideration may be had to the matters of common knowledge, history of the times and "eveiy conceivable state of facts" existing at the time of making of the law, vide Shashikant Laxman Kale v. Union of India [(1990) 4 SCC 366] ,.

(ii) The Colonial Rulers introduced Western system of Medicine in the country largely to cater to the needs of their settlers, servicemen and sepoys in the Army; while the elite India had the options of availing the benefits of Western Medicine, the Indian masses were left to be served by the indigenous system; the vast majority of rural population had no opportunity of coming into even occasional contact with the 'qualified doctors'; the foreign rulers in the last century, introduced the 'Licentiate Medical Practitioner Course' (LMP) and the indigenous medical practitioners were catering to the needs of small towns and rural areas, whose services were far below the minimum standard of health care; the National Planning Committee of Indian National Congress, way back in 1938 had constituted Col. Santok Singh Committee for National Health Rejuvenation; the Committee reported about the pathetic status of medical facilities and infrastructure in the country and had recommended for radical reforms; in 1946 Sir Joseph Bhore Committee recommended for the integration and restructuring of health services in the country and for the establishment of Community Health Work Force, with more focus on service to rural masse.

(iii) India has acute shortage of qualified health workers, especially Doctors, and this work force is substantially concentrated in urban areas; the public health qualified Physicians who were available in larger numbers in the first decade of Independence, have almost disappeared from the system; the norms for public health service providers though have been set long ago gradually proved inadequate by today's requirement & expectations; to this is added exponential population growth; the public health functionaries, as the official statistics reveal, are markedly short and they are militantly inadequate in rural India where the larger 138

population of the country resides; bringing skilled health professionals to remote, rural & difficult areas remains a Herculean task; from 2006-07 and onwards, under the National Rural Health Mission (NRHM), a variety of measures have been introduced to address the shortage of skilled workers in rural and difficult areas; the impugned Act is one big leap in that direction.

16. Community health concerns and our international commitment:

India's concern for providing health care to its people stems not only from the constitutional mandate as progressively interpreted by the Apex Court, but also from its international commitments; Article 55(b) of the United Nations Charter calls for the promotion of solutions inter alia of health problems for achieving stability and well being in the World; under Article 56 of the Charter, the Member States (India being one) pledged to co-operate with the UN in achieving the said objects; the Universal Declaration of Human Rights, 1948, declares that everyone is entitled to adequate standards of living, health and well being; Article 12 of International Covenant on Economic, Social & Cultural Rights, 1966 recognizes right of an individual qua his Nation State to health and medical services; the constitution of the World Health Organization, which is a principal organ of the United Nations responsible for health issues, defines health as under:

"Health is a state of complete physical, mental and social well-being and net merely the absence of disease or infirmity. The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion and political belief, economic or social condition".

Article 51(C) of our constitution enacts a Directive Principle for respecting international law; the Constitution and other Municipal laws need to be construed in the light of the United Nations Charter, international treaties & conventions vide Kesavananda [(1973) 4 SCC 225: AIR 1973 SC 1461], paras 155 & 156 Jolly George Verghese [(1980) 2 SCC 360: AIR 1980 SC 470] & Vis Aka [(1997) 6 SCC 241: AIR 1997 SC 3011].

139 17. Directive principles: Apex Court and the Community health care obligation:

Banking upon the provisions of Parts III & IV of our Constitution and the International Conventions as well, in several decisions the Apex Court has reiterated that the Community Right to Health emanates from the ever expanding reservoir of Article 21 coupled with the State obligations under Directive Principles enshrined in Articles 39(e), 41, 43 & 47 of the Constitution vide Consumer Education and Research Center v. Union of India [(1995) 3 SCC 42] , at para 24; Article 47 instructs the State to evolve the Policy inter alia for improving public health; the said Article specifically declares that this is a primary duty of the State; in this regard, it is pertinent to refer to a few important decisions of the Apex Court, mentioned below:

(i) In Paschimbanga Khetmazdoor Samity v. State of W.B. [(1999) 7 SCC 120 : AIR 1999 SC 2894] at para 9 it is observed:

"The Constitution envisages the establishment of a welfare State at the federal level as well as at the State level. In a welfare State the primary duty of the Government is to secure the welfare of the people. Providing adequate medical facilities for the people is an essential part of the obligations undertaken by the Government in a welfare State. The Government discharges this obligation by running hospitals and health centres which provide medical care to the person seeking to avail of those facilities. Article 21 imposes an obligation on the State to safeguard the right to life of every person. Preservation of human life is thus of paramount importance. The government hospitals run by the State and the medical officers employed therein are duty-bound to extend medical assistance for preserving human life. Failure on the part of a government hospital to provide timely medical treatment to a person in need of such treatment results in violation of his right to life guaranteed under Article 21"

140 (ii) In Vincent Panikurlangara v. Union of India [(1987) 2 SCC 165] , para 16, it is said:

"In a series of pronouncements during the recent years this Court has culled out from the provisions of Part IV of the Constitution these several obligations of the State and called upon it to effectuate them in order that the resultant pictured by the Constitution Fathers may become a reality As pointed out by us, maintenance and improvement of public health have to rank high as these are indispensable to the very physical existence of the community and on the betterment of these depends the building of the society of which the Constitution-makers envisaged. Attending to public health, in our opinion, therefore, is of high priority - perhaps the one at the top."

(iii) In State of Punjab v. Ram Lubhaya Bagga [(1998) 4 SCC 117], a three Judge Bench of the Apex Court observed:

"when we speak about a right, it correlates to a duty upon another, individual, employer, government or authority. In other words, the right of one is an obligation of another. Hence, the right of a citizen to live under Article 21 casts obligation on the State. This obligation is further reinforced under Article 47, it is for the State to secure health to its citizens as its primary duty. No doubt the Government is rendering this obligation by opening Government hospitals and health centres, but in order to make it meaningful, it has to be within the reach of its people, as far as possible to reduce the queue of waiting list, and it has to provide all facilities for which an employee looks for at another hospital... since it is one of the most sacrosanct and valuable rights of a citizen and equally sacred obligation of the State, every citizen of this welfare State looks towards the State for it to perform its this obligation with top priority...."

(iv) A Five Judge Bench of the Apex Court in Modern Dental College & Research Center v. State of M.P [(2016) 7 SCC 353] , at paras 171 & 172 observed:

"It is the obligation of the State under the Constitution to ensure the creating of conditions 141

necessary for good health including provisions for basic curative and preventive health services and assurance of healthy living and working conditions. Under Articles 39(e), 39(f) and 42 of the Constitution, obligations are cast on the State to ensure strength and health of workers, men and women; ensure children are given opportunities and facilities to develop in a healthy manner and to secure just and humane conditions of work and for maternity relief.... Article 47 of the Constitution makes improvement of public health a primary duty of the State.... Maintenance and improvement of public health and to provide health care and medical services is the constitutional obligation of the State. To discharge this constitutional obligation, the State must have the doctors with professional excellence and commitment who are ready to give medical advice and services to the public at large."

18. Apex Court on scarcity of rural medical service and reluctance of doctors to serve:

(i) Procurement of rural health care professionals has been a big challenge not only in India but in other advanced countries too; the shortage of health care work force is exacerbated in rural and semi-urban areas where the State struggles to attract and keep well trained clinicians; despite medical school initiatives and State Policies to train rural physicians, the rural India continues to face greater shortage of health professionals; health care delivery has been a challenging task in rural locations; in the case of State of U.P. v. Dinesh Singh Chauhan [(2016) 9 SCC 749] , at paras 40 & 41, the Apex Court observed that there has been a scarcity of Doctors in villages and that there has been a lack of response from graduate doctors to serve in remote or difficult areas; it also referred to Rajya Sabha debates of 23.12.2014 which mentioned about the extreme shortage of qualified and skilled Doctors for health care in rural areas and the Governmental measures proposing compulsory rural postings for Doctors; at para 44, it said:

142 "..........The State Governments across the country are not in a position to provide healthcare facilities in remote and difficult areas in the State for want of doctors. In fact there is a proposal to make one-year service for MBBS students to apply for admission to postgraduate courses, in remote and difficult areas as compulsory...."

(ii) Though, after the advent of Freedom, the numerical strength of medical colleges been exponentially increased and consequently, the population of health service professionals is also bulkened, the masses in rural and semi-urban areas continue to be deprived of essential medical services; the immediate victims are the poor, the underprivileged and the depressed classes; the medical education seen in the Country today is characterized by an obsessive pursuit of Post Graduate Courses by the young graduate doctors who normally have marked disinclination to serve in the country side; about three and a half decades ago, Apex Court in Dr. Pradeep Jain v. UOI [(1984) 3 SCC 654.] , had exhorted:

"What is, therefore, necessary is to set up proper and adequate structures in rural areas where competent medical services can be provided by doctors and some motivation must be provided to the doctors servicing those areas."

(iii) Decades later in State of Punjab v. Shivram [(2005) 7 SCC 1] , at para 39 it was observed:

"...How the medical profession ought to respond: Medical profession is one of the oldest professions of the world and is the most humanitarian one. There is no better service than to serve the suffering, wounded and the sick. Inherent in the concept of any profession is a code of conduct, containing the basic ethics that underline the moral values that govern professional practice and is aimed at upholding its dignity. Medical Ethics underpins the values at the heart of the practitioner-client relationship. In the recent times, 143

professionals are developing a tendency to forget that the self-regulation which is at the heart of their profession is a privilege and not a right and a profession obtains this privilege in return for an implicit contract with society to provide good, competent and accountable service to the public. It must always be kept in mind that doctor's is a noble profession and the aim must be to serve humanity, otherwise this dignified profession will lose its true worth"

19. A glimpse of impugned 2012 Act as amended by 2017 Act:

(i) The impugned law has been enacted by the State Legislature vide Karnataka Act No. 26 of 2015 for the avowed purpose of providing "for Compulsory Service by candidates completed medical courses before award of degrees or post-graduate degrees or diplomas" the Preamble to the Act specifically mentions why such a law is made i.e., "to provide for compulsory service"; even before the Amendment Act was made, the Statement of Objects and Reasons appended to the original Bill stated the purpose as: "to ensure availability of service... in Government Primary Health Centres and Government Hospitals"; this Act having been reserved for and is assented to by the President under Article 254(2) of the Constitution.

(ii) Section 1 of the impugned Act gives it's title, extent and commencement: the Government has notified the Principal Act w.e.f. 24.07.2015; Section 2 being the Dictionary Clause enlists definitions; Section 3 prescribes to the MBBS Graduates one year compulsory service in Government Primary Health Centres/Hospitals in rural areas as Junior Residents; Section 4 prescribes to the Post-

Graduate Diploma candidates one year compulsory service in Government hospitals in urban areas as Senior Residents, and similarly, Section 5 prescribes to the Super Specialty candidates one year compulsory service in District Government 144

hospitals as Senior Specialists; these sections guarantee their monthly stipend almost on par with the gross salaries admissible to the comparable posts/positions in the cadre minus Rs. 100/-; the Act also provides for temporary registration enabling practice of medicine; Section 6 being the enforcing provision prescribes a maximum penalty of Rs. 30 lakh, the minimum being 15 lakh for violation of the provisions of the Act; Section 7 gives, over-riding effect to the Act qua conflicting 'other law'; Section 8 vests in the Government the 'power to remove difficulties' during the initial period of three years of working of the Act, and Section 9 vests in it the 'rule making power'; accordingly the impugned 2015 Rules have been promulgated for carrying out the purposes of the Act.

20. Interim stay order against 2012 Act, and consequential legislative amendment in 2017:

In an avalanche of petitions laying challenge, a Co- ordinate Bench of this Court haying heard the matter, had issued Rule and granted interim order on 06.10.2015, staying the operation of the Principal Act and interdicting "all further proceedings, orders, actions, notifications including the Rules etc., pursuant to the Act"; the concerned respondents were directed to issue appropriate degrees and grant registration to the petitioners, subject to result of the writ petitions; petitioners were asked to furnish an undertaking that in the event, the writ petitions fail, they would comply with the provisions of the Act; the said order of stay fleetingly treated many of petitioners' contentions; the State Legislature presumably taking note of this order, has enacted the Amendment Act vide Karnataka Act No. 35 of 2017 which came into effect vide Notification dated 11.07.2017; by virtue of amendment the words "training"

& "trainee" stood omitted from the Principal Act, except in sub-Section (4) of Sec. 3; the amendment also removes embargo on the grant of degree and temporary registration under the provisions of the Karnataka Medical Registration Act, 1961 (hereafter KMC Act) and the IMC Act, which otherwise was interdicted under the 145

Principal Act; this amendment has removed some arguable grounds against vires of the Act.

21. CONTENTIONS AS TO LEGISLATIVE COMPETENCE:

(a) The approach to the issue of constitutionality of law: It has now been well settled that in cases involving questions of legislative competence, the enquiry should always be, as to the true nature and character of the challenged legislation and it is the result of such investigation, and not it's form that will determine as to whether or not, the said legislation relates to a subject, which is within the power of the Legislature. In such investigation, the Courts do examine the effect of the legislation and take into consideration its object, purpose or design for the purpose of ascertaining it's true character & substance and, the class of subjects of legislation to which it really belongs, and not for finding out the motives which prompted the legislature to make such legislation; a Five Judge Bench of the Apex Court in R.K. Dalmia v. Justice Tendolkar [AIR 1958 SC 588] , ruled that there is always a presumption in favour of the constitutionality of an enactment and the burden to rebut the same lies on him who attacks it.

(b) IMC Act and Legislative Lists & Entries: Petitioners' contention that the IMC Act, having been originally enacted prior to 42nd Amendment to the Constitution is referable to only Entry 66 List I in Seventh Schedule, is bit difficult to accept; post 42nd Amendment w.e.f.

3.1.1977, Entry 25 List III which had a restrictive text earlier as "vocational and technical training of labour" has been broadened with the new text now reading:

"Education, including technical education, medical education and universities, subject to the provision of entries 63, 64, 65 and 66 of List I; vocational and technical training of labour". although predominandy, the IMC Act deals with medical education referable to Entry 66 List I is true; going by the text & context of several of its provisions, it cannot be denied that the Act also deals with certain aspects of medical profession as well, and to that extent, is referable to Entry 26 List III which reads "Legal, medical and other professions" this was the 146

stand of Learned Sr. Advocate Mr. Poovayya too, in his Written Submissions, upto a particular point, although in a bit different context;

(i) it has been the concrete case of all the petitioners that the impugned Act has curtailed their statutory right to practise medicine which is protected under Article 19(1)(g); Sec. 15 of the IMC Act gives exclusive right of practice in favour of enrolled medical graduates; practising medicine sans enrolment attracts penalty; Sec. 20A gives power to the IMC to prescribe Standards of Professional Conduct & Etiquette and a Code of Ethics for medical practitioners; Sec. 25 provides for provisional registration as a sine qua non for gaining entry to the profession, and entitles the registered candidates to practise medicine; Sec. 27 extends this right throughout the country, in favour of persons possessing recognised medical qualifications once their names are borne on the Indian Medical Register; thus, the IMC Act deals with two subjects namely medical education referable to Entry 66 List I may be read with Entry 25 List III, and medical profession referable to Entry 26 List III; this view is consistent with the decision of the Apex Court in Dr. Preethisrivastava v. State of M.P. [(1999) 7 SCC 120 : AIR 1999 SC 2894] , and in Modern Dental College, (supra);

(ii) The contention that the IMC Act is referable only to Entry 66 List I is founded more on its historicity, than on any canons of constitutional jurisprudence; since the constitutional law operates as an organic system of fundamental rules of binding conduct, ideally speaking, coherent with each other, addition, deletion or the change of one ordinarily casts its light or shadow on the rest, subject to all just exceptions; Entry 26 List III, post 42nd Amendment does this, inter alia to the IMC Act that was enacted prior to 42nd Amendment; thus, the IMC Act being referable to Entry 66 List I (i.e., Education) & Entry 26 List III (i.e., profession) falls in the class of "ragbag 147

legislations" in the words of M.N. Venkatachalaiah J, in Ujagar Prints v. Union of India [(1989) 3 SCC 488] ,.

22. Impugned Act & the Legislative Entries:

(i) It has been a settled principle of constitutional jurisprudence that the Entries in the three Lists in the Seventh Schedule need to be given the widest interpretation possible; HM Seervai, in his Constitutional Law of India, Fourth Edition, Vol-

I, Para 2.12 writes "The golden rule of interpretation is that, words should be read in their ordinary natural and grammatical meaning subject to the rider that in construing words in a Constitution conferring legislative power the most liberal construction should be put upon the words so that they may have effect in their widest amplitude."; this has been the legal position at least, since Navinchandra Mafatlal v. Cit, Bombay [(1955) 1 SCR 829] , the impugned Act which prescribes one year compulsory public service in the Government hospitals is referable to Entry 6 List II which reads "Publichealth and sanitation; hospitals and dispensaries", the Apex Court in Paschimbanga Khetmazdoor Samity, supra has held:

"In a welfare State the primary duty of the Government is to secure the welfare of the people. Providing adequate medical facilities for the people is an essential part of the obligations undertaken by the Government in a welfare State. The Government discharges this obligation by running hospitals and health centres which provide medical care to the person seeking to avail of those facilities. Article 21 imposes an obligation on the State to safeguard the right to life of every person. Preservation of human life is thus Of paramount importance";

Consistent with the above observation of the Apex Court, the said Entry 6 List II needs to be construed as having a far more wider import than otherwise, failing which would be "much ado 148

signifying nothing", to borrow the words of Shakespeare;

(ii) There is one more angle which the Bar did not much advert to, in the course of hearing; impugned Act is also referable to Article 309 & Entry 41 List II, which speak of inter alia State public services; the Five Judge Bench of the Apex Court in the Case of I.N. Saksena v. State of M.P [(1976) 4 SCC 750 :

AIR 1976 SC 2250] , while construing the width and depth of this Entry observed:

31. Entry. 41, List II, reads as under:

"41. State public services; State Public Service Commission."

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 and 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 retrospective 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."

Since the impugned Act also is referable to multiple entries like the IMC Act, as mentioned above, it too is another classic case of 'ragbag legislations' vide Ujagarprints, (supra).

23. Compulsory service and vinculum juris of employer

- employee:

149 Since the State is employing these candidates in public service for a certain period, on a certain monthly remuneration (regardless of it's nomenclature) and with a certain designation, there are all the indicia of public employment; ordinarily an employment, be it private or public, arises from a contract which may graduate to status depending upon the law regulating the same; but compulsory employment is also not unknown to Service Jurisprudence; in all civilized jurisdictions, compulsory defence services, do obtain; even the debates of Dr. Ambedkar and others in the Constituent Assembly mention about this vide CAD Vol. VII, 3rd December, 1948; there is nothing in service jurisprudence that spurns at employer- employee relationship even in a compulsive engagement of services, especially when Article 23(2) of the Constitution itself sanctions "imposing compulsory service for public purposes", the impugned Act frugally and the 2015 Rules abundantly speak of Service Law concepts such as 'service', 'rural service', 'service period' 'vacancy', 'list of vacancies', 'eligibility', 'entrance test', 'selection', 'merit list', 'appointment', 'posting', 'working hours', 'nature of work','control & supervision', 'stipend', 'travelling allowance & daily allowance', 'leave', 'medicalleave', 'attendance certificate', 'certification of completion of service', etc.; thus, in pith & substance, elements of public service abound in the impugned law.

24. True object of impugned Act; construing its objectionable parts as otiose: amendments:

(i) Words 'training' & 'trainee' and the provision delaying degree were insignificant: The title and the provisions of the Principal Act had originally employed the terms 'training' & 'trainee'; it had provisions that had the effect of delaying the grant of degree or distinction; over-

stressing these, the petitioners contended that the Act was referable to Entry 66 List I i.e., medical education which is exclusively the domain of Parliament; now that these words are omitted and the provisions delaying grant of degree are removed by the Amendment Act, the said contention having lost its substratum does not merit consideration; the related contention that, corresponding changes are not brought about in the impugned 2015 Rules, does not advance their case any further, either; the Rules being subordinate legislation, regardless of 150

arguably their wide text, need to be construed in the light of parent Act as amended.

(ii) The further contention that the Principal Act, in pith & substance, dealt with the field of 'medical education' referable to Entry 66 List I, and therefore the same being incompetently enacted, is as good as a still-born child and could not have been revived by the Amendment Act, appears to be too farfetched an argument. A law is amended when it is in the whole or in part permitted to remain and something is added to, or taken from it or it is in some way changed or altered in order to make it more complete or perfect or effective; however, where the replacement of amendment theory prevails, the original Act is blotted out and is superseded by the amendatory Act, leaving it alone in effect; technically, an amended statute is not a new and independent statute since a part of the original Act remains; the question whether a statute which is unconstitutional in its entirety can be amended may be debatable because if the original enactment is completely unconstitutional, there may be nothing to amend; but where a statute is unconstitutional in part only, it may be laid down as a general rule undoubtedly in all jurisdictions that the statute may be amended by obliterating the invalid provisions or by correcting those which violate the Constitution, says Crawford in "THE CONSTRUCTION OF STATUTES" at paragraphs 115 & 117 (2014 Reprint, Pakistan Law House).

(iii) The argument that the Principal Act having been enacted incompetent is void ab initio and therefore, could not have been amended is structured inter alia on the basis of the words 'training' & 'trainee', and an erstwhile provision deferring the grant of degree and permanent registration to the students even after completion of the course; now that all this having been removed/diluted by the Amendment Act, keeping in view the observations made in the interim stay Order dated 06.10.2015, as already discussed above, the substratum for maintaining such a contention no longer exists.

151 (iv) Objectionable parts of law & their interpretative mellowing down: True it is, that the Principal Act had employed the terms 'training' and 'trainee'; there was also a provision for delaying grant of degree even after completion of course; all that did not make the Principal Act, any the less referable to Entries 6 & 41 in List II and Entry 26 in List III as already discussed above; these words could not have had any significance or meaning; It is open to the Courts to ignore certain words and even certain provisions of a statute by interpretative techniques so that the statute remains functional and the risk of its invalidation is avoided; Maxwell on 'The Interpretation of Statutes' Twelfth Edition by P.St. J. Langan at page 228 writes:

"WHERE the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity which can hardly have been intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence. This may be done by departing from the rules of grammar, by giving an unusual meaning to particular words, or by rejecting them altogether, on the ground that the legislature could not possibly have intended what its words signify, and that the modifications made are mere corrections of careless language and really give the true meaning. Where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftsman's unskilfulness or ignorance of the law."

(v) Imperfection in the language & expression of law: Ordinarily, the operation of Statute is not automatic and like all legal rules, it has to take effect through the interpretation of the Courts, when challenge is laid; in their task of literal or grammatical interpretation, Courts are constantly reminded, to their unfeigned chagrin, of the imperfection of human language; the provisions of the Act should not confuse it's main issue and the purpose; a legislation should be maturely considered, and construed as having practical utility. In Cramas Properties Ltd. v. Cannaught Fur Trimmings Ltd [[1965] 1 WLR 892] 152

, at p. 899 Lord Reid has said "the canons of construction are not so rigid as to prevent a realistic solution". C.K. Allen in "Law in The Making" Seventh Edition (Oxford), at page 484 opines:

"...To demand perfection of expression and sense is to expect infallibility not only of human foresight but of human language...... this defect may be inevitable, but that only makes it all the more inherent in the very nature of legislation....";

(vi) Ignoring some words or amputing some objectionable provisions in statutes: History of Legislations in U.K and in India is replete with cases where Courts have ignored not only certain words employed in Statutes but even certain provisions which otherwise would have exposed the Statutes to absurdity or invalidation; Hannan J. in Re Lockwood, deceased [1959] Ch. 231 ignored certain words in Sec. 47(5) of the Administration of Estates Act, 1925, when to have taken them into account would have resulted in preferring first cousins twice removed to the nephews and nieces of a person dying intestate; Ungoed-Thomas J. in Wynn v. Skegness Urban District Council [[1967] 1 WLR 52] , ignored the word "Charitable" employed in Sec. 11(1)(a) of the Rating and Valuation Act, 1961, keeping in view the dominant purpose of the Act; referring to a provision of an enactment, Lord Goddard CJ. said in Bebb v. Frank [[1939] 1 K.B. 558] , "For myself I am not ashamed to admit that I have not the least idea what sub-s. 8 means. I cannot give any meaning to it in the least satisfactory in my own mind"; Lord du Parcq in Cutler v. Wandsworth Stadium Ltd. [(1949) C. 398, 410] , had ridiculed an enactment observing "There are no doubt reasons which inhibit the legislature from revealing its intention in plain words. I do not know, and must not speculate, what those reasons may be.........."; Hon'ble Supreme Court in Delhi Development Authority v. Virender Lal Bahri [2019 SCC OnLine SC 279] , at para 1 faced with prima facie unsatisfactory structuring of a provision in Section 24 of the Right to Fair Compensation, etc. Act, 2013 quoted:

153 "I'm the Parliament's draftsman, I compose the country's laws, And of half the litigation I'm undoubtedly the cause!"

(vii) If the impugned Act is construed in the light of what is discussed above, no significance could have been attached to the erstwhile words "training" & "trainee" in the principal Act, nor to the provision which had deferred the grant of degree & permanent registration to the candidates completing the medical course; however, now in view of the Amendment Act which removed those words and diluted the provisions that made deferment of grant of degree & permanent registration, all this pales into insignificance inasmuch as the amended statute needs to be construed as if it had been originally, passed in its amended form or at least the parts unrepealed in the amendatory statute should be regarded as a continuance of existing law.

25. Contentions as to occupied field, repugnancy, validity of Presidential Assent:

(i) The contentions of the petitioners that the doctrines of 'occupied field' & of 'repugnancy' invalidate the impugned Act, do not merit acceptance since this Court in the discussion supra has already held that the impugned Act, in pith & substance is referable to Entries 6 & 41 in List II and Entry 26 in List III and not to Entry 25 in List III, especially after the objectionable parts and words therein are omitted by amendment; thus the subject matter of impugned Act is miles away from that of IMC Act, which is primarily referable to Entry 66 List I; for the same reason, the argument vociferously put forth from the side of the petitioners that once the Parliament by the IMC Act evinced an intent to occupy the field, the State could not have enacted the impugned law does not merit consideration; however, this Court hastens to add that, as already discussed above, the provisions of the impugned Act and of the IMC Act to the extent they regulate grant of registration & medical practice is referable to Entry 26 List III, as the KMC Act too is; this necessitated Assent of 154

the President to the impugned Act under Article 254(2);

the Assent Order specifically mentions Secs. 15 & 25 of IMC Act, and the UGC Act, 1956.

(ii) The contention that the Presidential Assent is vitiated by the absence of due consideration of the matter by the agencies involved, has not been substantiated; there are no pleadings in the writ petitions in this regard, either; true it is, the Assent of the President is susceptible to judicial review albeit in a restrictive way vide Kaiser-I- Hind (P) Ltd. v. N.T.C. [(2002) 8 SCC 182 : AIR 2002 SC 3404] ,; but having perused every page in the Original File, that graciously was made available by the Learned AAG even to the Counsel for the petitioners, this Court is convinced that there was due deliberation of the matter that culminated into the Assent; both the agencies involved in the Assenting process are high constitutional functionaries i.e., the office of the President of India (the Decision Maker) and the office of the Governor of the State (the Input Provider); Article 261(1) of the Constitution states - "Full faith and credit shall be given throughout the territory of India to public acts, records and judicial proceedings of the Union and of every State"; keeping all this in mind, this contention is liable to be rejected.

26. Temporary Registration under KMR Act r/w IMC Act, and scope of coverage of Presidential Assent:

(i) The petitioners next contended that the Assent of the President granted under Article 254(2) is confined to Secs. 15 & 25 of IMC Act is the case of the State itself;

that there are other provisions i.e., Secs. 21, 23, 26 & 27 in the IMC Act in respect of which admittedly the Presidential Assent has not been secured; that these provisions give right to registration under KMR Act, 1961 and right to medical practise, and consequently, the impugned Act to the extent it curtails those rights is constitutionally bad; this contention does not gain acceptance because-Sec. 21 which requires maintaining of Indian Medical Register, does not inhere in the candidates a substantive right to registration & medical practice as such; Sec. 23 which speaks of registration in the Indian Medical Register also does not give such a 155

right; Sec. 26 speaks of registration of additional qualifications secured by a registered medical practitioner; Sec. 27 speaks of privileges of persons enrolled in the Indian Medical Register; all these sections apparently have Sec. 15 as their substratum, in varying degrees; going by their text & context they are not "stand alone" provisions; therefore, the Presidential Assent grants primacy to the impugned law.

(ii) Incidental encroachment: The above apart, assuming that there is a conflict between the provisions of the impugned Act and those of IMC Act, the same being not substantial, the former are saved under the 'doctrine of incidental encroach-ment' since the intent & effect of these provisions are to sub-serve the dominant purpose of the impugned Act i.e., to secure candidates for compulsory medical service in the Government Hospitals; the Apex Court in Hoechst Pharmaceuticals Ltd. v. State of Bihar [(1983) 4 SCC 45] , para 57 observed:

"It is well settled that the validity of an Act is not affected if it incidentally trenches upon matters outside the authorized 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 under 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.".

(iii) True it is, that the permanent registration is deferred till after the candidate completes one year compulsory service, but not denied; deferral and denial are poles apart (are different from each other); to enable the petitioners to practise medicine during this period of one year, the impugned Act provides for temporary registration; there is nothing unreasonable in it; no Fundamental Right is absolute in the scheme of Part III of the Constitution; the Act which creates a public duty of the kind for the first time, need to have a reasonable provision for its enforcement; without a penal provision it 156

will be toothless; in addition to this, the power to enact law includes power to make necessary provisions for its implementation; after all, sanction is an ingredient of "Austinian Notion of Law"; therefore, there is nothing incompetent or incongruous in making such a provision in addition to the penal provision for ensuring compliance of the provisions of impugned Act; the further contention that the provisions of Secs. 4 & 5 of the impugned Act suffer from "manifest arbitrariness" inasmuch as they ignore an important factor that the permanent registration in the State Medical Register is a sine qua non for pursuing PG Degree/Diploma & Super Specialty Courses, is not substantiated by referring to any provisions in the MCI Regulations or the like; even otherwise, this temporary registration would satisfy the pleaded requirement, if any, for the purpose of admission to higher courses.

27. Impugned Act v. Right to Profession under Article 19(1)(g):

(i) As already discussed above, State's concern for providing health care to the citizens arises inter alia under Parts III & IV of the Constitution as progressively interpreted by the Apex Court in the light of relevant International Law & Conventions; the acute shortage of health care workers particularly in rural and semi-urban areas was recognized by the Apex Court more than three decades ago vide Dr. Pradeep Jain Case, (1984) supra and in the recent past in Dinesh Singh Chauhan Case, (2016) supra; several States have already evolved legislative & executive policies for addressing this requirement, and Karnataka is one of them; right to medical practice is given by the IMC Act; this right is protected under Article 19(1)(g) of the Constitution, is undeniable; but no Fundamental Rights are absolute and they admit as of necessity, reasonable restriction & regulation in larger public interest; none of the provisions of the impugned Act breaches the right to practise; on the contrary, the Act provides for medical practice soon after the course is complete, that too with designation, dignity & remuneration and for a short period of one year only; all this is in public interest.

157 (ii) In a Welfare State, it is the obligation of the State to ensure the creation and sustaining of conditions congenial to good health; it has been a long settled position of law that the private rights of citizens when in conflict with public interest, have to yield to the greater good; the Apex Court in Sayyed Ratanbhaisayeed v. Shirdinagar Panchayat [(2016) 4 SCC 631] , at paras 58 & 59 observed:

"58. The emerging situation is one where private interest is pitted against public interest. The motion of public interest synonymises collective welfare of the people and public institutions and is generally informed with the dictates of public trust doctrine - res communis i.e. by everyone in common. Perceptionally health, law and order, peace, security and a clean environment are some of the areas of public and collective good where private rights being in conflict therewith has to take a back seat. In the words of Cicero "the good of the people is the chief law".

59. The Latin maxim 'Salus Populi Suprema Lex ' connotes that health, safety and welfare of the public is the supreme in law. Herbert Broom, in his celebrated publication A Selection of Legal Maxims ' has elaborated the essence thereof as hereunder:

"This phrase is based on the implied agreement of every member of the society that his own individual welfare shall, in cases of necessity, yield to that of the community; and that his property, liberty and life shall, under certain circumstances, be placed in jeopardy or even sacrificed for the public good.

The demand of public interest, in the facts of the instant case, thus deserve precedence."

(iii) In M.R.F. Ltd. v. Inspector, Kerala Govt. [(1998) 8 SCC 227] , the Apex Court has laid down the following principles in adjudging the validity of restrictions on right to profession guaranteed under Article 19(1)(g):

"On a conspectus of various decisions of this Court, the following principles are clearly discernible 158

(1) While considering the reasonableness of the restrictions, the Court has to keep in mind the Directive Principles of State Policy.

(2) Restrictions must not be arbitrary or of an excessive nature so as to go beyond the requirement of the interest of the general public.

(3) In order to judge the reasonableness of the restrictions, no abstract or general pattern or a fixed principle can be laid down so as to be of universal application and the same will vary from case to case as also with regard to changing conditions, values of human life, social philosophy of the Constitution, prevailing conditions and the surrounding circumstances.

(4) A just, balance has to be struck between the restrictions imposed and the social control envisaged by clause (6) of Article 19.

(5) Prevailing social values as also social needs which are intended to be satisfied by restrictions have to be borne in mind. (See: State of U.P. v. Kaushailiys, (1964) 4 SCR 1002: AIR 1964 SC 416)

(6) There must be a direct and proximate nexus or a reasonable connection between the restrictions imposed and the object sought to be achieved. If there is a direct nexus between the restrictions, and the object of the Act, then a strong presumption in favour of the constitutionality of the Act will naturally arise."

(iv) A Five Judge Bench of the Apex Court in Sanjeev Coke Manufacturing Company v. Bharat Cooking Co. Ltd [(1983) 1 SCC 147] , at para 16 referring to the views of Bhagavathi J. in Minervamills v. Union of India [(1980) 3 SCC 625] , has held that if a law is enacted for the purpose of giving effect to a Directive Principle of State Policy, it would be difficult to condemn such law as 159

unreasonable and not in public interest, if it imposes a restriction on a Fundamental Right under Article 19; that, amended Article 31C grants immunity to a law enacted "really and genuinely" for giving effect to Directive Principles enshrined in Part IV, eliminating time consuming controversy as to contravention of Fundamental Rights under Articles 14 & 19; none of the petitioners argued that the impugned law is made not for giving effect to Directive Principles; therefore, no case is made out as to violation of Article 19(1)(g), as rightly contended by Learned AAG Mr. Chouta.

(v) In a recent decision of 19.08.2019 in Association of Medical Super Speciality Aspirants, (infra), the Apex Court disagreed with the grievance of similarly placed litigants that prescription of compulsory service is a breach of their Fundamental Right to Profession and that the restrictions placed on their choice of place of work are unreasonable. The Court having discussed the scope of right to profession, right to life & liberty and right to privacy vide Puttaswamy, (supra) and the. Govemment's International commitment vide Universal Declaration of Human Rights and the International Covenant on Economic, Social & Cultural Rights, repel the contention as to violation of these rights and upheld even Executive Policies of the State prescribing compulsory medical service to give effect to Directive Principles.

28. Impugned Act v. Equality Clause:

(i) The contention that the impugned Act enclasps only the candidates post its enactment, all others having been left out and thus being discriminatory, is liable to be invalidated for violating the Equality Clause enacted in Article 14, appears to be too farfetched an argument; it has long been settled in all civilized constitutional jurisdictions that classification necessarily implies discrimination between persons classified and those who are left out of the class; that, it is the essence of a classification that upon the class are cast duties and burdens; others having been left out; indeed the very idea of classification is that of inequality so that it goes without saying that the mere fact of inequality in no 160

manner determines the constitutionality; when new legislative policies are evolved, the State as of necessity has to fix a cut-off date w.e.f. which new duties are loaded on the shoulders of the citizens falling into a class;

such matters essentially fall within the domain of executive wisdom gained through experience; the reason for not casting the duty on the Doctors who are already in practice are not far to seek; if all they too were within the embrace of the Act, arguably challenge could have been laid ort the grounds of manifest arbitrariness, over- inclusiveness, too-much-retrospectivity and the like; it hardly needs to be said, that the power of the State to legislate includes power to discriminate on intelligible differentia connected with the object sought to be achieved; in such matters, the State power has a larger latitude, subject to all just exceptions into which case of the petitioners does not fit; every breach of equality does not spell disaster as a lethal violation of Article 14. warranting award of death penalty to a plenary legislation; what a Five Judge Bench of the Apex Court observed in Namitsharma v. UOI [(2013) 1 SCC 745] , at para 15 needs to be borne in mind; it said:--

"15. It is a settled canon of constitutional jurisprudence that the doctrine of classification is a subsidiary rule evolved by courts to give practical content to the doctrine of equality. Overemphasis on the doctrine of classification or anxious or sustained attempt to discover some basis for classification may gradually and imperceptibly erode the profound potency of the glorious content of equality enshrined in Article 14 of the Constitution...."

(ii) The contention that the impugned Act treats petitioner-

candidates on par with those who have availed the benefit of "Government Seats" and therefore, this falls foul of Equality Clause which shuns dissimilars being treated similarly, does not impress the Court; the govemment- seat-allottee-candidates again are subject to a compulsory three year service as per the bonds executed by them in terms of Rule 15 of Karnataka Conduct of Entrance Test for Selection and Admission to Post 161

Graduate Medical and Dental Degree and Diploma Courses Rules, 2006; challenge to this obligation is already negatived by this Court in the case of Dr. Swamymanjunath v. State [ W.P. Nos. 46917- 47025/2018 dated 21.12.2018] , which is affirmed by the Division Bench on 15.02.2019 in the case of Dr. Varunbr v. State of Karnataka [ W.A. No. 32/2019 (Edn- Res)] , and later upheld by the Apex Court in Association of Medical Super Specialty Aspirants and Residents v. Uoi [ W.P.(C) No. 376/2018 & connected matters vide Order dated 19.8.2019] , the contention that those candidates form a class apart, is true, but that does not advance the case of petitioners since they too are liable to serve one year under the impugned Act, in addition to three years in terms of their Bond, as a quid pro quo for securing the Government seat; the other contention that because of the impugned Act, the inflow of students for admission to medical courses in the colleges within the State will be considerably affected possibly striking their death knell, is an argument in despair; such a contention does not merit even cursory examination inter alia in the absence of necessary statistical data; this apart, the contention touches the market forces assessment of which ordinarily is beyond the pale of judicial scrutiny; even otherwise, for challenge on this assertion, Article 14 does not much avail since the Act secures shelter under the protective umbrella of Article 31(C) vide Sanjeevcoke, supra.

29. Impugned Act v. Right to Privacy:

(i) The contention of Smt. Jayna Kothari, Learned Sr Advocate that the impugned Act enacting a compulsion render public service is violative of citizen's Fundamental Right to Privacy vide Puttaswamy v. UOI [(2017) 10 SCC 1], is bit difficult to sustain; true it is, in the said case, the Apex Court broadly explained and illustrated what "privacy" is, although, an exhaustive enumeration or catalogue of entitlements or interests comprised in right to privacy is left undetermined; Privacy includes at its core, the preservation of personal intimacies, sanctity of family life, marriage, procreation, home and sexual orientation. "Privacy also connotes right to be left 162

alone"; Privacy safeguards individual autonomy and recognizes ability of individual to control vital aspects of his or her life. Personal choices governing way of life are intrinsic to privacy, Learned Sr. Counsel Kothari specifically banks upon the observations of the Apex Court at paragraphs 373 & 424, in Puttaswamy Case, supra, which are as under:

"Similarly, the freedom to choose either to work or not and the freedom to choose the nature of the work are areas of private decision making process" (para 373)

"To exercise one's right to privacy is to choose and specify on two levels. It is to choose which of the various activities that are taken in by the general residue of liberty available to her she would like to perform, and to specify whom to include in one's circle when performing them. It is also autonomy in the negative, and takes in the choice and specification of which activities not to perform and which persons to exclude from one's circle. Exercising privacy is the signaling of one's intent to these specified others - whether they are one's co-participants or simply one's audience - as well as to society at large, to claim and exercise the right. To check for the existence of an actionable claim to privacy, all that needs to be considered is if such an intent to choose and specify exists, whether directly in its manifestation in the rights bearer's actions, or otherwise."

(para 424).

Learned Sr. Advocates M/s. Ashok Haranahalli, P.S. Rajagopal, Dhyan Chinnappa, Shashikiran Shetty and Jayna Kothari banking upon the above observations submitted: that the impugned law falls foul of this right inasmuch as the 'choice' in-built in privacy is robbed off; that the petitioners cannot be asked to work in ill- infrastructured/nil-infrastructured Govt, hospitals against their willingness, and may not be required to reside, eat & work in places which are not of their 'choice & convenience.'

(ii) The Right to Privacy being of nascent origin is gathered inter alia from Part III read with Preamble of the 163

Constitution; if Part III ' Explicit Rights ' can be regulated & restricted by law, albeit on certain permissible grounds, it hardly needs to be stated that the right to privacy which is derived therefrom cannot claim immunity from such regulation and restriction; in the very same decision, the Apex Court has clarified that like other rights which form part of fundamental freedoms protected by Part III including right to live and personal liberty under Article 21, privacy is not an absolute right, therefore, what applies to the Fundamental Rights in respect of regulation/restriction a priori applies to this right, and in the case of conflict, it has to yield to the larger public interest for achieving which the impugned Act is designed; the Apex Court in the second K.S. Puttaswamy (Adhaar) v. UOI [(2019) 1 SCC 1] , has held that the Right to Privacy can be abridged by a just, fair & reasonable law as any other Fundamental Rights can be; such abridgment has to fulfill the test of proportionality i.e., it should be proportionate to the need for such interference; in addition to this, the law in question must also provide procedural guarantees against abuse of such interference; abridgment has to be co-terminus with true requirement; going by this standard, it is difficult to countenance petitioners' argument that the impugned Act is constitutionally invalid, especially when State's power to compel citizens to render public service is sanctioned under Article 23(1) of the Constitution.

(iii) The contention that the candidates are required to go to even remote and difficult areas to work and to reside there, where they may encounter some difficulties as to availability of food & shelter of their choice may be true, but it is too feeble a ground for invalidating the law made for effectuating the constitutional imperatives i.e., Directive Principles and also for addressing the concern of the Apex Court as to non-availability of medical services to the rural masses & to the underprivileged classes; the petitioners reliance on the decision of Chattisgarh High Court in Dr Atin Kundu v. State [AIR 2003 Chh 1] , is not well founded since the Rule in challenge there apparently related to Post Graduate medical education to the advantage of the students unlike the law impugned herein whose focal point is public service in Govt, hospitals; that 164

apart, this Court is not very sure whether the ratio in the said decision if at all is invocable in view of the latest decision of the Apex Court in the case of Association of Medical Super Speciality Aspirants, (supra)-, however, this does not allow the respondent authorities to turn Nelson Eye to the affliction the candidates deployed for compulsory services in rural and difficult areas are put to; if there are genuine difficulties, the authorities functioning under the impugned Act/Rules are required to address the same at the earliest after hearing the concerned; the contention that the candidates may not get posting to the hospitals which are reasonably infrastructured to suit to their qualifications, again is a matter which the authorities would address subject to pragmatics; a Grievance Redressal Cell, if created would be of considerable value; it hardly needs to be mentioned that nothing in the impugned Act comes in the way of doing that, since the Government being the guardian of the citizens has parens patria power even de hors the Act; these observations will take care of the apprehensions expressed by the petitioners.

30. Impugned Act v. Forced Labour:

(i) The contention of the Petitioners that the impugned Act compelling the citizens put in Public Service is hit by prohibition of forced labour and therefore falls foul of Articles 21 & 23(1) of the Constitution cannot be accepted. True it is that the Apex Court has given an expansive significance to the term 'forced labour', in the case of People's Union For Democratic Rights v. Union of India [(1982) 3 SCC 235 : AIR 1982 SC 1473] , (Asiad Case). Bhagwati J. added that "where a person provides labour or service to another for remuneration which is less than the minimum wage, the labour or service provided by him clearly falls within the scope and ambit of the words 'forced labour' under Article 23". That the Article prohibits 'bonded labour', is true; but, the concept as such has different connotations in which case of the petitioners is not covered; the plea of beggar, again is misplaced. 'Begar' as employed in Article 23(1) means a labour or service that is exacted by the State or its instrumentality without giving reasonable 165

remuneration for it This is prohibited by the said Article, is undesirable. In this case, admittedly, the Government has fixed a monthly remuneration almost on par with comparable regular recruits gross salary when the minimum fixed as wages under the provisions of Sec. 3 r/w Sec. 5 of Minimum Wages Act, 1948 for this class of health care workers is only Rs. 45,000/- per month.

(ii) The above apart, Clause (2) of Article 23 in so many words permits the State to impose compulsory service for "public purposes", which expression is wide enough to include not only military or police service but also other social services like the medical services, that too, for a short period of one year and with remuneration & designation. This aspect of the matter was discussed in the Constituent Assembly. Mr. H.V. Kamath had suggested that the phrase "public purpose" be replaced with "national or social purpose", arguing that it has a "wider and a higher, a more comprehensive connotation."

The Chief Architect of the Constitution, Dr. Ambedkar replied that the word 'public' was "wide enough to cover both 'national' as well as social CAD Vol. VII, 3rd December, 1948; the phrase "public purpose" was explained by the Apex Court in State of Bihar v. Kameshwar Singh [(1952) 1 SCC 528 : AIR 1952 SC 252] , observing:

"whatever furthers the general interests of the community as opposed to the particular interests of the individual must be regarded as a public purpose... The words "public purpose" used in article 23(2) indicate that the Constitution uses those words in a very large sense. In the never ending race the law must keep pace with the realities of the social and political evolution of the country as reflected in the Constitution."

(iii) Justice Krishna Iyer speaking for the Apex Court, in Jolly George Verghese v. Bank of Cochin, (supra) held that "it is a principle generally recognised in national legal system that, in the event of doubt, the national rule is to be interpreted in accordance with the State's international obligations." Therefore, it is pertinent to note that the International Covenant on Civil and Political Rights, 166

which has been ratified by our nation in 1979, states that "work or service that forms part of normal civil obligations" is not forced labour (Article 8). According to the ICCPR Human Rights Committee, in order to be a normal civil obligation, "the labour in question must, at a minimum, not be an exceptional measure; it must not possess a punitive purpose or effect; and it must be provided for by law in order to serve a legitimate purpose" vide Faure v. Australia [ Communication No. 1036/2001, U.N. DOC. CCPR/C/85/D/1036/2001 (2005)] . Even in liberal and advanced constitutional jurisdictions, the compulsory public service is upheld by the Courts. The US Supreme Court in Butler v. Perry [240 US 328 (1916)] , held that a law requiring able-bodied men to perform a reasonable amount on public roads was not in violation of the Thirteenth Amendment of the US Constitution, which prohibits involuntary servitude; the Court reasoned that every individual owed certain duties to the State, such as services in the army, militia, the jury, etc., and that the Amendment did not intend to bar the enforcement of those duties.

(iv) The provisions relating to Fundamental Rights guaranteed under Part III of the Constitution have to be viewed keeping in view the Directive Principles of State Policy enshrined in Part IV which impose certain obligations on the State. S.R. DAS J. in Kameshwar Singh, supra, observed "[i]f [...] the State is to give effect to these avowed purposes of our Constitution we must regard as a public purpose all that will be calculated to promote the welfare of the people as envisaged in these directive principles of State policy whatever else that expression may mean." In Minerva Mills, (supra) it is held "The significance of the perception that Parts III and IV together constitute the core of commitment to social revolution and they, together, are the conscience of the Constitution is to be traced to a deep understanding of the scheme of the Indian Constitution. [...] In other words, the Indian Constitution is founded on the bed-rock of the balance between Parts III and IV. To give absolute primacy to one over the other is to disturb the harmony of the Constitution." Therefore, all the Fundamental 167

Rights need to be read harmonized the Directive Principles.

31. Impugned Act v. Fundamental Rights of minorities:

(i) Learned Sr. Advocate Mr. K.G. Raghavan in his inimitable style made a novel argument that: petitioner institution is established by a Religious Minority Community i.e., Christians; since 1974 its Academic Curriculum/Prospectus, as a pre-condition for admission to medical courses requires the students to execute a bond for serving inter alia in the Rural Community Health Centres recognised by the petitioner CBCI Society; the Fundamental Right of the Minority Community guaranteed under Article 30 of the Constitution is interpreted by the Apex Court as having widest amplitude; petitioners ' right to have the services of the candidates (passing out from its institutions) exploited for the benefit of the Community is a part of its Fundamental Right to establish and administer the institution; this right becomes exercisable in its essence only when the objective for which it has set up the institutions reaps fruition i.e., when the candidates after completion of course make their services available to the Christian community not only in the State but outside also; this important right having been curtailed by the impugned Act, the same is liable to be struck down;

he hastens to add that unlike the Fundamental Right to profession guaranteed under Article 19(1)(g) which can be restricted under Article 19(2), the Minority Right guaranteed under Article 30(1) does not admit restriction other than the ones enlisted in Tma Pai Foundation Case [(2002) 8 SCC 481] , i.e. only for the purpose of:

serving the interest of teachers & the taught, maintaining standards of education in the institutions, preventing mal- administration of institutions and interdicting profiteering; restriction on this important right effected under the impugned Act not having been founded on any of these four factors, unauthorizedly infringes the Minority Right, contended Mr. Raghavan, banking upon the decisions referred to below.

(ii) True it is that, the second petitioner is an unaided religious minority educational institution established and 168

administered by Christians; all minority institutions have a host of Fundamental Rights assured under Article 30(1) of the Constitution, is also true; from In re the Kerala Education Bill [AIR 1958 SC 956] , to St. Xavier's College Society [(1974) 1 SCC 717] , Tma Pai Foundation, (supra) to P.A. Inamdar [(2005) 6 SCC 537] , and to Christian Medical College [(2014) 2 SCC 305] , it has been iterated & reiterated by the Apex Court that: the right of minority communities to establish and administer an educational institution of their choice in Article 30(1) gives the right a very wide amplitude; this right must mean to establish real institutions which will effectively serve the needs of the community, and not a mere and pious abstract sentiment; this right cannot be reduced to a mere husk, and it cannot be exercised in vaccuo; these rights under Article 30(1) are not subject to restrictions in the manner in which those guaranteed under Article 19 are; these and other such observations show the importance which our Constitution gives to the rights of religious & linguistic minorities; these rights being sacrosanct are guarded by the Courts with zeal and zest, as the survey of judicial precedents shows.

(iii) Mr. Raghavan's contention that the law relating to Fundamental Rights of Minority Communities has marched from April to May and now to June of its life and that the rights of the community to have the services of students passing out from their institutions need to be recognized as of necessity, and as a collective corollary to other cognate rights emanating from Article 30(1) is difficult to countenance; the right which the petitioner institution claims is referable to a Pact between the Management and the students, at the time of admission to the course; it has nothing to do with the Minority Rights guaranteed under this Article; a reading from the above decisions does not support too broad a contention so forcefully put forth by Mr. Raghavan; no ruling having even persuasive value nor any opinio juris is brought to the notice of this Court which even remotely promotes such a contention; conceding such a right to the minority community amounts to expanding the scope of Article 30(1) beyond its wide contours as fixed by the Apex Court in a catena of decisions including those referred to 169

above; this apart, the contention that the products of Minority Institution should be available for the exclusive use and benefit of the said minority only, has communal overtones; it is vitiated by unconscionability as well; this apart, it militates against the larger public interest which the impugned Act having been enacted to give effect to the Directive Principles, intends to serve.

(iv) The contention that the minority institutions' right to make exclusive use of the services of its passing out students in terms of the Pact being protected by Article 30(1), the impugned Act falls foul of it, is liable to be rejected also because:

(a) the Constitution Bench of the Apex Court in Sr. Xavier's College Society Case, (supra), at para 173 stated as under:

"The application of the term 'abridge' may not be difficult in many cases but the problem arises acutely in certain types of situations. The important ones are where a law is not a direct restriction or the right but is designed to accomplish another objective and the impact upon the right is secondary or indirect. Measure-which are directed other forms of activities but which have a secondary or indirect or incidental effect Upon the right do not generally abridge a right unless the content of the right is regulated. As we have already said, such measures would include various types of taxes, economic regulations, laws regulating tile wages, measures to promote health and to preserve hygiene and other laws of general application. By hypothesis, the law, taken by itself, is a legitimate one, aimed directly at the control of some other activity. The question is about its secondary impact upon the admitted area of administration of educational institutions. This is especially a problem of determining when the regulation in issue has an effect which constitutes an abridgement of the constitutional right within the meaning of Article 13(2). In other words, in every case, the court must undertake to define and give content to the word 'bridge' in Article 13(2)(1). The question to be asked and answered is whether the particular measure is regulatory or whether it crosses the 170

zone of permissible regulation and enters the forbidden territory of restrictions or abridgement. So, even if an educational institution established by a religious or linguistic minority does not seek recognition, affiliation or aid, its activity can be regulated in various ways provided the regulations do not take away or abridge the guaranteed right. Regular tax measures, economic regulations, social welfare legislation, wage and hour legislation and similar measures may, of course have some effect upon the right under Article 30(1). But where the burden is the same as that borne by others engaged in different forms of activity, the similar impact on the right seems clearly insufficient to constitute an abridgement...."

(b) the Apex Court in All Bihar Christian Schools Association v. State of Bihar [(1988) 1 SCC 206] , at para 9 observed:

"..........Minority institutions may be categorised in three classes, (i) educational institutions which neither seek aid nor recognition from the State, (ii) institutions that seek aid from the State, and (iii) educational institutions which seek recognition but not aid. Minority institutions which fall in the first category are free to administer their institution in the manner they like, the State has no power under the Constitution to place any restriction on their right of administration This does not mean that an unaided minority institution is immune from operation of general laws of the land. A minority institution cannot claim immunity from contract law tax measures, economic regulations, social welfare legislation, labour and industrial laws and similar other measures which are intended to meet the need of the society...."

(c) In St. John's Teachers Training Institute v. State of Tamil Nadu [(1993) 3 SCC 595] , it is held that even unaided institutions are not immune from the operations of general laws of the land such as Contract Law, Tax measures, Economic Laws, Social Welfare Legislations, Labour and Industrial Laws and similar other laws which are intended to meet the need of the society. After all, 171

the Act prescribes only one short year of compulsory service in public interest i.e., to give effect to the Directive Principles, in tune with international commitment as discussed by the Apex Court in the decisions supra; it is always open to the beneficiaries/parties to the contract to enforce the obligation arising therefrom after the compulsory service period is over; the intervention of new legislation does not impair the contractual rights of these minority institutions qua the students who have made a pact for serving the community post their courses; the enforceability of contractual obligation arguably having been postponed by one year, the rest of the years are free for availment in favour of the minority institutions; there is no cause for panic nor for a hue & cry.

32. Penalty clause in impugned Act v. Rule of Proportionality; manifest arbitrariness:

(i) Learned Sr. Advocate Mr. M.R. Naik's contention that the enormity of the pehalty amount prescribed under Sec. 6 of the Act falls foul of the 'doctrine of proportionality', is bit difficult to accept; the socio-legal history of the law prescribing compulsory service has already been discussed above; the Apex Court in a few decisions having painfully noted the acute unavailability of medical services in rural and semi-urban areas, has expressed its anguish about the reluctance of medical professionals to render services in rural & difficult areas; even the Parliament and the MCI too have discussed this aspect of the matter; were men/women perfectly rational, so as to act invariably in accordance of an enlightened estimate of consequences, the question of the measure of penalty would present no difficulty; perhaps a draconian simplicity and severity would be perfectly effective; but, they seldom are; several States have already evolved Legislative & Executive Policies prescribing compulsory medical service and fixing heavy sums of penalty for defaulters; with this backdrop of fact matrix, the impugned law having been enacted, Sec. 6 thereof prescribes Rs. 15 lakh as the minimum fine, Rs. 30 lakh being the maximum; it need not be reiterated that the plenary power to enact law includes the power to enact 172

coercive provisions for its implementation. The Apex Court in State of U.P. v. Sukhpal Singh Bal [(2005) 7 SCC 615] , while dealing with some aspects of penalty has observed

"... Everything which is incidental to the main purpose of a power is contained within the power itself. The power to impose penalty is for the purpose of vindicating the main power which is conferred by the Statute in question......."

(ii) The Constitution Bench of the Apex Court in R.K. Dalmia, (supra) stated that the Legislature understands and correctly appreciates the need of its people; that its laws are directed to problems made manifest by experience.

Thomas M Cooley, in his A TREATISE ON THE CONSTITUTIONAL LIMITATIONS' (First Edition 1868) Indian Reprint 2005, Hindustan Law Book Company, Calcutta at page 168 stated:

"The rule of law upon this subject appears to be, that, except where the Constitution has imposed limits upon the legislative power, it must be considered as practically absolute, whether it operate according to natural justice or not in any particular case. ...... The remedy for unwise or oppressive legislation, within constitutional bounds, is by an appeal to the justice and patriotism of the representatives of the people. If this fail, the people in their sovereign capacity can correct the evil; but Courts cannot assume their rights. The judiciary can only arrest the execution of a statute when it conflicts with the constitution. It cannot run a race of opinions upon points of right, reason, and expediency with the law-making power....."

The above proposition may be too broad qua our constitutional jurisprudence; but in matters relating to legislative decisions as to what should be the amount of fine, normally, Courts do not substitute their view for that of the law-maker; a lot of wisdom drawn from experience lies behind the making of the penal provisions for securing compliance to law; viewed from any angle, this case is not the one for judicial intervention.

173 (iii) The Apex Court in Association of Medical Super Speciality Aspirants, (supra) at para 19 has mentioned about the rates of fine fixed by some States and by the Central Government in default of compulsory service; in West Bengal fine amount is Rs. 30 lakh, period of compulsory service being three years; in Tamil Nadu the fine amount is Rs. 50 lakh, the period of compulsory service being two years; for candidates passing out from Armed Forces Medical Colleges, the Central Government has fixed a fine of Rs. 25 lakh, period of compulsory service being five years; in Kerala the minimum liquidated damages (ie., fine amount) is Rs. 20 lakh, the compulsory service period being one year vide Ayishabegum v. State, Laws [(KER) 2018 (3) 105] , in Maharashtra the fine amount is Rs. 25 lakh, the minimum service period being two years vide Vinod Shankar Lal Sharma v. State of Maharashtra [LAWS (BOM) 2012 (11) 33 DB] , in Gujarat, the fine amount is Rs. 20 lakh, the service period being one year; going by these contemporary standards of several States and of the Central Government, it cannot be gainsaid that the fine amount prescribed by Sec. 6 of the impugned Act, ranging between Rs. 15 lakh & Rs. 30 lakh is arbitrary, unreasonable or disproportionate; the problem of acute shortage of medical service to the rural & disadvantaged masses and a manifest reluctance of medical practitioners to serve them eminently justify the size of fine amount, the intent being both, firstly the deterrence against default of compliance and secondly the recompense to the State for the service lost.

(iv) There is some force in the contention Mr. Naik that the award of penalty being imperative on the violation of Sec. 6 per se works out enormous injustice and hardship even to the scrupulous candidates who are disabled from joining compulsory service for reasons beyond their control and not otherwise attributable to them; however, regardless of text of this provision, always there is some discretion left with the authorities to mitigate the hardship within the bounds of law; if there are bona fide reasons for the candidates for not reporting for public duty immediately, reprieve may be granted by way of deferred service or split service as the case may be;

174 recovery of fine amount in instalments, of course, with banking rate of interest also mitigate hardship; however, in no case, the candidate shall be permitted to escape from the compulsory service; the Govt, may lay down some guidelines for considering the cases of such candidates deserving grant of reprieve; these observations allay the fears of the scrupulous and sincere candidates.

(v) The contention that Sec. 6 vests unbridled & unguided power in the authorities and therefore the same is liable to be shooted down on the ground of excessive delegation of power to the executive sans regulatory norms, is again bit difficult to cotton with; true it is, that the impugned Act and the Rules do not in so many words lay down the guidelines as to how the fine amount ranging between the minimum of Rs. 15 Lakh and the maximum of Rs. 30 Lakh is to be determined; but the object, text and context of the provisions of the Act do provide some guidance; it is a settled legal position that the abuse potential of law perse, is not a ground for hanging it to death, especially when it is possible to bring down the extent of likely abuse, to reasonable limits, by judicial techniques; the fears of the petitioners in this regard can be assuaged by creating a High Level Committee inter alia comprising of a legally trained official not below the rank of Deputy Secretary, Dept, of Law, as a participatory body in adjudication of disputes relating to fine amount, and by mandamusing the Govt, to issue guidelines for regulating the exercise of ' arguably ' wide discretion.

33. Impugned Act, whether creates criminal liability?

(i) Petitioners contended that Sec. 6 of the impugned Act has abundant criminal law elements and it is punitive in nature, and therefore, is hit by prohibition of making ex post facto criminal law, as enacted in Article 20(1) of the Constitution; they further contended that the law cannot be made applicable to the candidates who had already secured admission to the medical courses before it came into force; in other words, the impugned Act having penal provision i.e., Sec. 6 applies only to those candidates who join the medical course after it was notified for 175

enforcement inasmuch retrospective penal statutes cannot be enacted because of constitutional bar.

(ii) A sovereign legislature has the power to enact prospective as well as retrospective law; however, our Constitution enacts some limitations on the legislative power, one such being Article 20(1) which prohibits enactment of ex post facto criminal law; to put it differently, the legislature cannot make an act/omission a crime for the first time and then make that law retrospective to cover such act/omission later; this prohibition is not merely against enacting retroactive law but also against conviction under such law; however, such a prohibition has no application to a civil liability unless the statute makes the failure to discharge such liability an offence vide of Hathisingh Mfg. Co. v. UOI [(1960) 3 SCR 528] . Therefore, the statute in question needs to be properly construed before invoking such prohibition; to decide the nature of a statute i.e., whether it is civil law or criminal law, is not an easy task as discussed by Jeremy Bentham in "Limits of Jurisprudence Defined" and in Salmond's Jurisprudence; one has to see a host of factors such as the text, context, intent, content & effect of the law in question for determining it's true nature.

(iii) There is no provision in the impugned Act even remotely suggesting that the act of a medical graduate in denying or delaying his service to the public is an ' offence' required to be investigated into by the police, or tried by the criminal Court; the object of the Act is to secure medical candidates for serving in Govt, hospitals; if the legislature intended to prosecute these persons, it would have made the act of escaping from public service a punishable offence by appropriate text; God forbid such a law being made; the Act does not intend to drive the unscrupulous doctors to prosecution lest it should waste medical resources meant for the public at large; thus, the impugned law which does not create a criminal liability cannot be classified as penal law, some coercive elements present therein notwithstanding; this apart, if a genuine doubt arises in the mind of the Court as to whether the statute creates a criminal liability or a civil obligation, it is 176

prudent to resolve the same by leaning towards the latter.

(iv) How the legislature intends to treat the violators of the impugned Act is expressed by the following text of Sec. 6:

"6. Penalty:-- Whoever contravenes any of the provisions specified in this Act shall be punished with a fine not less than rupees fifteen lakhs but may extend upto rupees thirty lakhs

The Apex Court in Sukhpal Singh Bal supra observed:

"penalty is a slippery word and it has to be understood in the context in which it is used in a given statute. A penalty may be the subject matter of a breach of statutory duty or it may be the subject matter of a complaint. In ordinary parlance, the proceedings may cover penalties for avoidance of civil liabilities which do not constitute offences against the State. This distinction is responsible for any enactment intended to protect public revenue. Thus, all penalties do not flow from an offence as is commonly understood but all offences lead to a penalty. Whereas, the former is a penalty which flows from a disregard of statutory provisions, the latter is entailed where there is mens rea and is made the subject matter of adjudication"

(v) The absence of the ingredient of a traditional crime namely mens rea such as guilty mind, culpable negligence or the like is yet another factor that strengthens the view that the Act is not a penal legislation;

the malusinse and nialus prohibit a which traditionally inhere in criminal legislations are conspicuous by their absence in this Act; added to this, the text of the impugned Act is distinct from the standard penal legislations such as Penal Code, 1860 or the like; the hugeness of penalty ranging between Rs. 15,00,000/- and Rs. 30,00,000/- goes to show that the same is not punitive but is in the nature of recompense; this is the written stand of the State in its Memo dated 13.08.2019 which inter alia reads: "............"fine" to be clarified as compensation." May be that with the amount of 177

penalty/fine, the Govt, may hire the services of willing doctors who otherwise are not covered by the Act; this penalty itself has some punitive elements may be true; but it is only for ensuring that the candidates are deterred from fleeing away from the public duty and nothing beyond; such deterrence in varying degrees lies in several laws fastening civil obligations, is undeniable; therefore, the attack on the Act founded on the ground of ex post facto, criminal law, fails.

34. Whether the Act imposing civil liability is retroactive in operation?

(i) The contention that the impugned Act is prospective in operation and in any event it needs to be so construed for saving it from being struck down as being manifestly arbitrary, has some force; there is a strong presumption that all statutes creating rights & obligations are prospective in operation since ordinarily the vested rights of the citizens are not intended to be altered to their detriment. Retroactive legislation even in civil matters is looked upon with disfavour because of its tendency to be unjust and unreasonable; even in the absence of constitutional provisions, unlike in the case of penal law, statute with but few exceptions should be construed so that they shall have only prospective operation; indeed, there is a strong presumption that the legislature intended its enactments to be effective only in futuro, in the absence of a clear indication to the contra; authorities on statutory construction like Earl T. Crawfard suggest that if perchance any reasonable doubt exists in this regard, it should be resolved in favour of prospective operation unless its language must imperatively and clearly require the contrary; as a general rule, a statute expressed in general terms and in the present tense will be given prospective effect and considered applicable to conditions coming into existence subsequent to its enactment even though such conditions were not actually known at the time of enactment.

(ii) The rule of prospectivity of statutes is founded on the proposition that since every citizen is presumed to know the law and to enter into business engagements in 178

accordance with its provisions, it would be unjust, even where the legislature has the power to enact a law with retroactive effect, to allow the enactment to operate in retrospection, unless it is very clear that the contra is the legislative purpose; every statute, it has been said, which takes away or impairs vested rights acquired under existing laws or attaches a new disability in respect of transactions or considerations already passed, must be presumed, out of respect to the Legislature, to be intended not to have a retrospective operation, vide: People v. Dilliard [298 N.Y.S 296, 302, 252, Ap. Div 125] ,; our Apex Court in National Agricultural Co-Op Marketing Federation of India v. Union of India [(2003) 5 SCC 23] , observed:

"The retrospectivity is liable to be decided on a few touch stones such as: (i) the words used must be expressly provided or clearly implied retrospective operation; (ii) the retrospectivity must be reasonable and not excessive or harsh] otherwise it runs the risk of being struck down as unconstitutional; (iii) where the legislation is Jntroduced to overcome a judicial decision, the power cannot be used to subvert the decision without removing the statutory basis of the decision. There is no fixed formula for the expression of legislative intent to give retrospectivity to an enactment...."

(iii) There is a lot of force in the contention of the petitioners that all they had already joined the medical courses before the impugned law was conceived in or enacted; many of them have organized the financial and other resources for prosecuting the course of studies keeping in view that they would come out of the campus and enter the free market soon after accomplishment of the course as prescribed by the MCI Regulations; many of them might have had the idea of prosecuting higher studies with the legal regime that obtained prior to enactment of the impugned Act; may be there are cases that metaphorically fit into 'beg, borrow & steal' for gaining entry to the campus; there is also force in the argument that to some extent, the impugned Act has affected their 'choice' post facto; had they known that such a law was in the offing, they would have taken an 'informed decision' 179

as to whether they should have entered medical course or not. Thus, the application of the Act to all such candidates would mete out enormous injustice and hardship and all this justifies their submission that the impugned Act is and be construed as being prospective in operation, than to risk its validity on the ground of 'manifest arbitrariness', as expounded by the Apex Court in the case of Shayara Bano v. Union of India [(2017) 9 SCC 1] . This appears to be the stand of the State in its letter dated 30.08.2019 infra.

35. Whether NIMHANS is a University qua the impugned Act?

The contention of Learned Counsel Mr. P.S. Rajagopal that Act cannot be applied to the candidates who having been duly admitted to medical courses in the NIMHANS at Bengaluru come out with value addition, has some force. Sec. 2(g) of the impugned Act defines the University to mean 'a University established by law in the State or a University declared as deemed University under the UGC Act'. The Legislature has power to define a word even artificially, either extensively or restrictively. When a word is defined to 'mean' such & such, the definition is prima facie restrictive and needs to be treated as exhaustive vide Inland Revenue Commissioner v. Joiner [(1975) 3 All ER 1050.] , at 1061. It cannot be disputed that the definition of 'University' given under Section 2(g) of the impugned Act falls in this category and therefore suffice it to say, that the NIMHANS was a society registered under the Karnataka Societies Registration Act, 1960 on 27.12.1974; now it is a body corporate constituted under Sec. 4 of The National Institute of Mental Health and Neuro-Sciences, Bengaluru Act, 2012. There is nothing either in the impugned Act or under the NIMHANS Act to suggest that the said body corporate answers the definition of University under Section 2(g) of the impugned Act. Consequently, the provisions of Section 4 & 5 of the impugned Act do not apply to the candidates accomplishing the courses in NIMHANS. However, this does not mean that they are exempted from the provisions of Section 3 of the Act.

36. Government letter offering some reprieve:

180 (i) On 28.08.2019, all these matters having been heard and reserved, were posted for pronouncement of judgment this afternoon; the Learned Addl. Advocate General Sri Sandesh Chouta on the forenoon of this day sought for further hearing, by placing on record a Government Letter dated 30.08.2019 (approved by the Principal Secretary of the Department); the content portion of the same reads as under:

"The original Act i.e., "The Karnataka Compulsory Service by Candidates Completed Medical Courses Act, 2012" came into force on 3/06/2015 and the amendment Act i.e. "The Karnataka Compulsory Service by Candidates Completed Medical Courses (Amendment) Act, 2017" came into force on 3/06/2017 The original Act covered all candidates who were doing their mediqal course/post graduate medical course/super specialty graduate course as on 3/06/2015.

However in view of the conditional interim order dated 6/10/2015, the candidates have not undergone the mandatory service.

Looking into the workability of the Act and the object which it seeks to achieve, the State proposes (without prejudice to its contention in support of the vires of the Act) that even if the Act is made applicable for candidates who had taken their admission post the commencement of the Act i.e., 3/06/2015 (i.e. candidates would pass out in the year 2020-21), the object which the Act seeks to achieve will be achieved. This would also satisfy the petitioners before the court since most of the petitioners (if not all) would have completed their course well before this cut of period of 2020-21.

Proposal/concession given by the State Government would not inure to the benefit to such of the candidates who have already opted and paid penalty/compensation in lieu of not undergoing mandatory service.

However if for any reason the petitioners and similar placed candidates agree to mandatorily serve the State, even for 6 months, the State would endeavor to commence the process of counseling 181

and post the candidates for compulsory service accordingly."

(ii) Apparently, going by its text and context, the above letter not being a ' Government Order ' as rightiy submitted by Learned ASG Mr. Shashikantha may or may not proprio vigor create any right in favour of the candidates. However, the proposal in the letter is only an expression of Government's intent of granting some reprieve to the deserving candidates who may make use of it, in accordance with law. Suffice it to say that, the legality aspects of the said letter have not been gone into by this Court; whether such a letter has legal efficacy and whether it fits into the "REMOVAL OF DIFFICULTY" clause enacted in the impugned Act, are a matter for consideration, but not in this case.

(Emphasis supplied)

The coordinate Bench clearly holds that imposition of compulsory

service does not take away or infringe the fundamental right of

petitioners' right to practice. Though the judgment was rendered

qua the Indian Medical Council Act, 1956, the issue regarding

legislative competence is the same; the contentions advanced are

the same and, therefore what is answered by the co-ordinate Bench

equally applies to the contentions that are now repeated in the case

at hand. I am in respectful and complete agreement with what is

considered and rendered by the co-ordinate Bench in the case of

BUSHRA ABDUL ALEEM. Therefore, I decline to accept the 182

contention that the State lacks legislative competence and the

Rules should be set aside on the ground of it being violative of

Article 19(1)(g) of the Constitution of India. The issue is answered

against the petitioners.

ISSUE NO.2:

(ii) Whether 2012 Act is hit by repugnancy qua NMC

Act, 2019?

10. The contention of the learned senior counsel in unison is

that the Act of 2012 is repugnant to NMC Act. The reasons to

contend so are that the NMC Act is a subsequent Act which

prescribes entrance examination called NEET at the undergraduate,

postgraduate and super speciality levels. The purport of having

NEET is to ensure uniformity in medical admission as well as

practice. It is the submission that the co-ordinate Bench in

BUSHRA ABDUL ALEEM or any other judgment considering the

issue did not go into the question of repugnancy earlier. The further

submission is that the State Act restricts opportunities to students

of Karnataka for appearing postgraduate NEET examination 183

immediately after completion of the course whereas most of the

students of other States who do not have rural service and are

medical graduates are given the definite advantage over the

students from Karnataka to pursue their career further. The State

Act, it is contended that, is repugnant insofar as it disturbs

uniformity in qualifying to postgraduate NEET examination. On

these submissions, the learned senior counsel would contend that

there is vast difference between the IMC Act and the NMC Act.

11. Before embarking upon consideration of these

submissions, I deem it appropriate to notice Articles of the

Constitution of India and judgments rendered by the Apex Court on

the issue of repugnancy. List-I of Seventh Schedule is the Union

List which empowers the Parliament to make laws of subjects

coming under the list. Entry 66 of List-I of the seventh Schedule

reads as follows:

"66. Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions."

(Emphasis supplied) 184

Entry-66 empowers the Parliament to determine the standards in

institutions of higher education or research and scientific and

technical institutions. The Indian Medical Council Act, 1956 was

framed in exercise of powers as aforesaid. The NMC Act, 2019

repeals and replaces the IMC Act. Therefore, power is traceable to

Entry-66 of List-I of the Seventh Schedule to the Constitution.

12. The Act of 2012 is promulgated by the State Government.

List-II of the Seventh Schedule is the State list where the State is

empowered to make laws of the items enumerated in the said list.

List-III is the concurrent list where both the Parliament and the

State Legislature has the power to make laws except that it cannot

run counter to what is made by the Parliament under List-I. Entry-

25 of the concurrent list reads 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."

(Emphasis supplied)

Entry 25 empowers the State to regulate education including

technical education, medical education and Universities subject to 185

the provisions of entries 63, 64, 65 and 66 of List-I. Therefore, the

Constitution itself places a bar to any enactment by the State that

could run counter to entries in List-I. Article 254 of the Constitution

of India reads as follows:

"254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States.--

(1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.

(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State:

Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State."

Article 254 mandates that in the event of inconsistencies of the

laws made by Parliament and the laws made by the State

Legislatures, to the extent they being repugnant would be declared 186

void. The Apex Court in the case MODERN DENTAL COLLEGE &

RESEARCH CENTRE v. STATE OF M.P. - (2016) 7 SCC 353

recognizes the power of the State to regulate admission to courses

referable to List-III, Entry 25 and not List-I, Entry 66. Therefore, in

the light of this finding by the Apex Court, the Act of 2012 is

traceable to Entry-25 of List-III. Repugnancy cannot be determined

in thin air. The parameters of determination of repugnancy is also

dealt with by the Apex Court in plethora of judgments. The Apex

Court in the case of INNNOVENTIVE INDUSTRIES LIMITED v.

ICICI BANK AND ANOTHER4 has held as follows:

"42. In Tika Ramji v. State of U.P. [Tika Ramji v. State of U.P., 1956 SCR 393 : AIR 1956 SC 676] , this Court, after setting out Article 254 of the Constitution, referred in detail to a treatise on the Australian Constitution and to various Australian judgments as follows: (SCR pp. 424-27 : AIR pp. 698-700, paras 27-32)

"27. Nicholas in his Australian Constitution, 2nd Edn., p. 303, refers to three tests of inconsistency or repugnancy--

(1) There may be inconsistency in the actual terms of the competing statutes (R. v. Brisbane Licensing Court [R. v. Brisbane Licensing Court, (1920) 28 CLR 23 (Aust)]).

(2) Though there may be no direct conflict, a State law may be inoperative because the Commonwealth law, or the

4 (2018) 1 SCC 407 187

award of the Commonwealth Court, is intended to be a complete exhaustive Code (Clyde Engg. Co. Ltd. v. Cowburn [Clyde Engg.

Co. Ltd. v. Cowburn, (1926) 37 CLR 466 (Aust)]).

(3) Even in the absence of intention, a conflict may arise when both State and Commonwealth seek to exercise their powers over the same subject-matter (Victoria v. Commonwealth [Victoria v. Commonwealth, (1937) 58 CLR 618 (Aust)]; Wenn v. Attorney General (Vict.) [Wenn v. Attorney General (Vict.), (1948) 77 CLR 84 (Aust)].

28. Isaacs, J. in Clyde Engg. Co. Ltd. v. Cowburn [Clyde Engg. Co. Ltd. v. Cowburn, (1926) 37 CLR 466 (Aust)] , CLR p. 489 laid down one test of inconsistency as conclusive:

'If, however, a competent legislature expressly or implicitly evinces its intention to cover the whole field, that is a conclusive test of inconsistency where another legislature assumes to enter to any extent upon the same field.'

29. Dixon, J. elaborated this theme in McLean, ex p [McLean, ex p, (1930) 43 CLR 472 (Aust)], CLR p. 483:

'When Parliament of the Commonwealth and Parliament of a State each legislate upon the same subject and prescribe what the rule of conduct shall be, they make laws which are inconsistent, notwithstanding that the rule of conduct is identical which each prescribes, and Section 109 applies. That this is so is settled, at least when the sanctions they impose are diverse. But the reason is that, by prescribing the rule to be observed, the Federal statute shows an intention to cover the subject- matter and provide what the law upon it shall be. If it appeared that the Federal law was intended to be supplementary to or cumulative upon State law, then no inconsistency would be exhibited in imposing the same duties or in inflicting different penalties. The inconsistency does not lie in the mere co- existence of two laws which are susceptible of simultaneous obedience. It depends upon the intention of the paramount legislature to express by its enactment, completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed. When a Federal statute discloses such an intention, it is 188

inconsistent with it for the law of a State to govern the same conduct or matter.'

30. To the same effect are the observations of Evatt, J.

in Stock Motor Ploughs Ltd. v. Forsyth [Stock Motor Ploughs Ltd. v. Forsyth, (1932) 48 CLR 128 (Aust)] , CLR p. 147:

'It is now established, therefore, that State and Federal laws may be inconsistent, although obedience to both laws is possible. There may even be inconsistency although each law imposes the very same duty of obedience. These conclusions have, in the main, been reached, by ascribing "inconsistency" to a State law, not because the Federal law directly invalidates or conflicts with it, but because the Federal law is said to "cover the field". This is a very ambiguous phrase, because subject- matters of legislation bear little resemblance to geographical areas. It is no more than a clichè for expressing the fact that, by reason of the subject-matter dealt with, and the method of dealing with it, and the nature and multiplicity of the regulations prescribed, the Federal Authority has adopted a plan or scheme which will be hindered and obstructed if any additional regulations whatever are prescribed upon the subject by any other authority; if, in other words, the subject is either touched or trenched upon by State Authority.'

31. The Calcutta High Court in G.P. Stewart v. Brojendra Kishore Roy Chaodhury [G.P. Stewart v. Brojendra Kishore Roy Chaodhury, 1939 SCC OnLine Cal 116 : AIR 1939 Cal 628] had occasion to consider the meaning of repugnancy and B.N. Rau, J. who delivered the judgment of the Court observed at AIR p.

632: (SCC OnLine Cal)

'It is sometimes said that, two laws cannot be said to be properly repugnant unless there is a direct conflict between them, as when one says "do" and the other "don't", there is no true repugnancy, according to this view, if it is possible to obey both the laws. For reasons which we shall set forth presently, we think that this is too narrow a test: there may well be cases of repugnancy where both laws say "don't" but in different ways. For example, one law may say, "No person shall sell liquor by retail, that is, in quantities of less than five gallons at a time" and another law may say, "No person shall sell liquor by retail, that is, in quantities of less than ten gallons at a time".

189 Here, it is obviously possible to obey both laws, by obeying the more stringent of the two, namely the second one; yet it is equally obvious that the two laws are repugnant, for to the extent to which a citizen is compelled to obey one of them, the other, though not actually disobeyed, is nullified.'

The learned Judge then discussed the various authorities which laid down the test of repugnancy in Australia, Canada, and England and concluded at AIR p. 634: (SCC OnLine Cal)

'The principle deducible from the English cases, as from the Canadian cases, seems therefore to be the same as that enunciated by Isaacs, J. in Australian 44 hour case [Clyde Engg. Co. Ltd. v. Cowburn, (1926) 37 CLR 466 (Aust)] : if the dominant law has expressly or impliedly evinced its intention to cover the whole field, then a subordinate law in the same field is repugnant and therefore inoperative. Whether and to what extent in a given case, the dominant law evinces such an intention must necessarily depend on the language of the particular law.'

32. Sulaiman, J. in Shyamakant Lal v. Rambhajan Singh [Shyamakant Lal v. Rambhajan Singh, 1939 SCC OnLine FC 3 : (1939) 1 FCR 193] , FCR p. 212 thus laid down the principle of construction in regard to repugnancy: (SCC OnLine FC)

'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 infact, 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." (Attorney General for Ontario v. Attorney General for the Dominion [Attorney General for 190

Ontario v. Attorney General for the Dominion, 1896 AC 348 (PC)] ) (AC pp. 369-70).'"

(emphasis supplied)

This Court expressly held that the pith and substance doctrine has no application to repugnancy principles for the reason that:

(SCR pp. 420-21 : AIR p. 696, para 24)

"24. ... The pith and substance argument also cannot be imported here for the simple reason that, when both the Centre as well as the State Legislatures were operating in the concurrent field, there was no question of any trespass upon the exclusive jurisdiction vested in the Centre under Entry 52 of List I, the only question which survived being whether, putting both the pieces of legislation enacted by the Centre and the State Legislature together, there was any repugnancy, a contention which will be dealt with hereafter."

43. In Deep Chand v. State of U.P. [Deep Chand v. State of U.P., 1959 Supp (2) SCR 8 : AIR 1959 SC 648] , this Court referred to its earlier judgments in Zaverbhai [Zaverbhai Amaidas v. State of Bombay, (1955) 1 SCR 799 : AIR 1954 SC 752 : 1954 Cri LJ 1822] and Tika Ramji [Tika Ramji v. State of U.P., 1956 SCR 393 :AIR 1956 SC 676] and held: (Deep Chand case [Deep Chand v. State of U.P., 1959 Supp (2) SCR 8 : AIR 1959 SC 648] , SCR p. 43 : AIR p. 665, para 29)

"29. ... Repugnancy between two statutes may thus be ascertained on the basis of the following three principles:

(1) Whether there is direct conflict between the two provisions;

(2) Whether Parliament intended to lay down an exhaustive code in respect of the subject-matter replacing the Act of the State Legislature; and (3) Whether the law made by Parliament and the law made by the State Legislature occupy the same field."

44. In Ukha Kolhe v. State of Maharashtra [Ukha Kolhe v. State of Maharashtra, (1964) 1 SCR 926 : AIR 1963 SC 1531 : (1963) 2 Cri LJ 418] , this Court found that Sections 129-A and 129-B did not repeal in its entirety an existing law contained in Section 510 of the Code of Criminal Procedure in its application to offences under Section 66 of the Bombay 191 Prohibition Act. It was held that Sections 129-A and 129-B must be regarded as enacted in exercise of power conferred by Entries 2 and 12 in the Concurrent List. It was then held: (SCR pp. 953-54 : AIR pp. 1541-42, para 20)

"20. ... It is, difficult to regard Section 129-B of the Act as so repugnant to Section 510 of the Code as to make the latter provision wholly inapplicable to trials for offences under the Bombay Prohibition Act. Section 510 is a general provision dealing with proof of reports of the Chemical Examiner in respect of matters or things duly submitted to him for examination or analysis and report. Section 129-B deals with a special class of reports and certificates. In the investigation of an offence under the Bombay Prohibition Act, examination of a person suspected by a Police Officer or Prohibition Officer of having consumed an intoxicant, or of his blood may be carried out only in the manner prescribed by Section 129- A: and the evidence to prove the facts disclosed thereby will be the certificate or the examination viva voce of the registered Medical Practitioner, or the Chemical Examiner, for examination in the course of an investigation of an offence under the Act of the person so suspected or of his blood has by the clearest implication of the law to be carried out in the manner laid down or not at all. Report of the Chemical Examiner in respect of blood collected in the course of investigation of an offence under the Bombay Prohibition Act otherwise than in the manner set out in Section 129-A cannot therefore be used as evidence in the case. To that extent Section 510 of the Code is superseded by Section 129-B. But the report of the Chemical Examiner relating to the examination of blood of an accused person collected at a time when no investigation was pending, or at the instance not of a Police Officer or a Prohibition Officer remains admissible under Section 510 of the Code."

45. In M. Karunanidhi v. Union of India [M. Karunanidhi v. Union of India, (1979) 3 SCC 431 : 1979 SCC (Cri) 691 : (1979) 3 SCR 254] , this Court referred to a number of Australian judgments and judgments of this Court and held:

(SCC pp. 444-49, paras 24-35 : SCR pp. 272-78) 192

"24. It is well settled that the presumption is always in favour of the constitutionality of a statute and the onus lies on the person assailing the Act to prove that it is unconstitutional.

Prima facie, there does not appear to us to be any inconsistency between the State Act and the Central Acts. Before any repugnancy can arise, the following conditions must be satisfied:

1. That there is a clear and direct inconsistency between the Central Act and the State Act.

2. That such an inconsistency is absolutely irreconcilable.

3. That the inconsistency between the provisions of the two Acts is of such a nature as to bring the two Acts into direct collision with each other and a situation is reached where it is impossible to obey the one without disobeying the other.

25. In Colin Howard's Australian Federal Constitutional Law, 2nd Edn. the author while describing the nature of inconsistency between the two enactments observed as follows:

'An obvious inconsistency arises when the two enactments produce different legal results when applied to the same facts.'

26. In Hume v. Palmer [Hume v. Palmer, (1926) 38 CLR 441 (Aust)] Knox, C.J., observed as follows:

'The rules prescribed by the Commonwealth law and the State law respectively are for present purposes substantially identical, but the penalties imposed for the contravention differ ... In these circumstances, it is I think, clear that the reasons given by my Brothers Issacs and Starke for the decisions of this Court in Union Steamship Co. of New Zealand v. Commonwealth [Union Steamship Co. of New Zealand v. Commonwealth, (1925) 36 CLR 130 (Aust)] and Clyde Engg. Co. Ltd. v. Cowburn [Clyde Engg. Co. Ltd. v. Cowburn, (1926) 37 CLR 466 (Aust)] establish that the provisions of the law of the State for the breach of which the appellant was convicted are inconsistent with the law of the Commonwealth within the meaning of Section 109 of the Constitution and are therefore invalid.'

Issacs, J. observed as follows:

193 'There can be no question that the Commonwealth Navigation Act, by its own direct provisions and the Regulations made under its authority, applies upon construction to the circumstances of the case. It is inconsistent with the State Act in various ways, including (1) general supersession of the regulations of conduct, and so displacing the State regulations, whatever those may be; (2) the jurisdiction to convict, the State law empowering the Court to convict summarily, the Commonwealth law making the contravention an indictable offence, and therefore bringing into operation Section 80 of the Constitution, requiring a jury; (3) the penalty, the State providing a maximum of £50, the Commonwealth Act prescribing a maximum of £100, or imprisonment, or both; (4) the tribunal itself.'

Starke, J. observed as follows:

'It is not difficult to see that the Federal Code would be "disturbed or deranged" if the State Code applied a different sanction in respect of the same act. Consequently the State regulations are, in my opinion, inconsistent with the law of the Commonwealth and rendered invalid by force of Section 109 of the Constitution.'

27. In a later case of the Australian High Court in Mclean, ex p [McLean, ex p, (1930) 43 CLR 472 (Aust)] Issacs and Starke, JJ. while dwelling on the question of repugnancy made the following observation:

'In Cowburn case [Clyde Engg. Co. Ltd. v. Cowburn, (1926) 37 CLR 466 (Aust)] is stated the reasoning for that conclusion and we will now refer to those statements without repeating them. In short, the very same conduct by the same persons is dealt with in conflicting terms by the Commonwealth and State Acts. A Court, seeing that, has no authority to inquire further, or to seek to ascertain the scope or bearing of the State Act. It must simply apply Section 109 of the Constitution, which declares the invalidity pro tanto of the State Act.'

Similarly Dixon, J. observed thus:

194 'When Parliament of the Commonwealth and Parliament of a State each legislate upon the same subject and prescribe what the rule of conduct shall be, they make laws which are inconsistent, notwithstanding that the rule of conduct is identical which each prescribes, and Section 109 applies. That this is so is settled, at least when the sanctions they impose are diverse: Hume v. Palmer [Hume v. Palmer, (1926) 38 CLR 441 (Aust)] .'

28. In Zaverbhai Amaidas v. State of Bombay [Zaverbhai Amaidas v. State of Bombay, (1955) 1 SCR 799 :

AIR 1954 SC 752 : 1954 Cri LJ 1822] this Court laid down the various tests to determine the inconsistency between two enactments and observed as follows:

'The important thing to consider with reference to this provision is whether the legislation is "in respect of the same matter". If the later legislation deals not with the matters which formed the subject of the earlier legislation but with other and distinct matters though of a cognate and allied character, then Article 254(2) will have no application. The principle embodied in Section 107(2) and Article 254(2) is that when there is legislation covering the same ground both by the Centre and by the Province, both of them being competent to enact the same, the law of the Centre should prevail over that of the State.

It is true, as already pointed out, that on a question under Article 254(1) whether an Act of Parliament prevails against a law of the State, no question of repeal arises; but the principle on which the rule of implied repeal rests, namely, that if subject-matter of the later legislation is identical with that of the earlier, so that they cannot both stand together, then the earlier is repealed by the later enactment, will be equally applicable to a question under Article 254(2) whether the further legislation by Parliament is in respect of the same matter as that of the State law.'

29. In Tika Ramji v. State of U.P. [Tika Ramji v. State of U.P., 1956 SCR 393 : AIR 1956 SC 676] while dealing with the question of repugnancy between a Central and a State enactment, this Court relied on the observations of Nicholas in his Australian Constitution, 2nd Edn. p. 303, where three tests 195

of inconsistency or repugnancy have been laid down and which are as follows: (SCR pp. 424-25 : AIR p. 698, para 27)

'(1) There may be inconsistency in the actual terms of the competing statutes (R. v. Brisbane Licensing Court [R. v. Brisbane Licensing Court, (1920) 28 CLR 23 (Aust)] ).

(2) Though there may be no direct conflict, a State law may be inoperative because the Commonwealth law, or the award of the Commonwealth Court, is intended to be a complete exhaustive code (Clyde Engg. Co. Ltd. v. Cowburn [Clyde Engg. Co. Ltd. v. Cowburn, (1926) 37 CLR 466 (Aust)] ).

(3) Even in the absence of intention, a conflict may arise when both State and Commonwealth seek to exercise their powers over the same subject-matter [Victoria v. Commonwealth [Victoria v. Commonwealth, (1937) 58 CLR 618 (Aust)] ; Wenn v. Attorney General (Vict.) [Wenn v. Attorney General (Vict.), (1948) 77 CLR 84 (Aust)] ].'

This Court also relied on the decisions in Hume v. Palmer [Hume v. Palmer, (1926) 38 CLR 441 (Aust)] as also Mclean, ex p [McLean, ex p, (1930) 43 CLR 472 (Aust)] referred to above. This Court also endorsed the observations of Sulaiman, J. in Shyamakant Lal v. Rambhajan Singh [Shyamakant Lal v. Rambhajan Singh, 1939 SCC OnLine FC 3 : (1939) 1 FCR 193] where Sulaiman, J. observed as follows: (SCC OnLine FC)

'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 infact, and not depend merely on a possibility.'

30. In Om Parkash Gupta v. State of U.P. [Om Parkash Gupta v. State of U.P., 1957 SCR 423 : AIR 1957 SC 458 : 1957 196

Cri LJ 575] where this Court was considering the question of the inconsistency between the two Central enactments, namely, the Penal Code, 1860 and the Prevention of Corruption Act held that there was no inconsistency and observed as follows: (SCR p. 437 : AIR p. 464, para 29)

'29. It seems to us, therefore, that the two offences are distinct and separate. This is the view taken in Amarendra Nath Roy v. State [Amarendra Nath Roy v. State, 1955 SCC OnLine Cal 2 : AIR 1955 Cal 236] and we endorse the opinion of the learned Judges, expressed therein. Our conclusion, therefore, is that the offence created under Section 5(1)(c) of the Prevention of Corruption Act is distinct and separate from the one under Section 405 of the Penal Code, 1860 and, therefore, there can be no question of Section 5(1)(c) repealing Section 405 of the Penal Code, 1860. If that is so, then, Article 14 of the Constitution can be no bar.'

31. Similarly in Deep Chand v. State of U.P. [Deep Chand v. State of U.P., 1959 Supp (2) SCR 8 : AIR 1959 SC 648] this Court indicated the various tests to ascertain the question of repugnancy between the two statutes and observed as follows: (SCR p. 43 : AIR p. 665, para 29)

'29. ... Repugnancy between two statutes may thus be ascertained on the basis of the following three principles:

(1) Whether there is direct conflict between the two provisions;

(2) Whether Parliament intended to lay down an exhaustive code in respect of the subject-matter replacing the Act of the State Legislature; and (3) Whether the law made by Parliament and the law made by the State Legislature occupy the same field.'

32. In Megh Raj v. Allah Rakhia [Megh Raj v. Allah Rakhia, 1942 SCC OnLine FC 6 : AIR 1942 FC 27] where Varadachariar, J. speaking for the Court pointed out that whereas in Australia a provision similar to Section 107 of the Government of India Act, 1935 existed in the shape of Section 109 of the Australian Constitution, there was no corresponding provision in the American Constitution. Similarly, the Canadian 197

cases have laid down a principle too narrow for application to Indian cases. According to the learned Judge, the safe rule to follow was that where the paramount legislation does not purport to be exhaustive or unqualified there is no inconsistency and in this connection observed as follows: (SCC OnLine FC)

'... The principle of that decision is that where the paramount legislation does not purport to be exhaustive or unqualified, but itself permits or recognises other laws restricting or qualifying the general provision made in it, it cannot be said that any qualification or restriction introduced by another law is repugnant to the provision in the main or paramount law. ...

The position will be even more obvious, if another test of repugnancy which has been suggested in some cases is applied, namely, whether there is such an inconsistency between the two provisions that one must be taken to repeal the other by necessary implication.'

In State of Orissa v. M.A. Tulloch & Co. [State of Orissa v. M.A. Tulloch & Co., (1964) 4 SCR 461 : AIR 1964 SC 1284] Ayyangar, J. speaking for the Court observed as follows:

(SCR p. 477 : AIR pp. 1291-92, para 15)

'15. ... Repugnancy arises when two enactments both within the competence of the two legislatures collide and when the Constitution expressly or by necessary implication provides that the enactment of one legislature has superiority over the other then to the extent of the repugnancy the one supersedes the other. But two enactments may be repugnant to each other even though obedience to each of them is possible without disobeying the other. The test of two legislations containing contradictory provisions is not, however, the only criterion of repugnancy, for if a competent legislature with a superior efficacy expressly or impliedly evinces by its legislation an intention to cover the whole field, the enactments of the other legislature whether passed before or after would be overborne on the ground of repugnance. Where such is the position, the inconsistency is demonstrated not by a detailed comparison of provisions of the two statutes but by the mere existence of the two pieces of legislation.' 198

34. In T.S. Balliah v. ITO [T.S. Balliah v. ITO, (1969) 3 SCR 65 : AIR 1969 SC 701] it was pointed out by this Court that before coming to the conclusion that there is a repeal by implication, the Court must be satisfied that the two enactments are so inconsistent that it becomes impossible for them to stand together. In other words, this Court held that when there is a direct collision between the two enactments which is irreconcilable then only repugnancy results. In this connection, the Court made the following observations: (SCR pp. 68-69 & 72-73 : AIR pp. 703-04 & 706, paras 4 & 6)

'4. ... Before coming to the conclusion that there is a repeal by implication, the Court must be satisfied that the two enactments are so inconsistent or repugnant that they cannot stand together and the repeal of the express prior enactment must flow from necessary implication of the language of the later enactment. It is therefore necessary in this connection to scrutinise the terms and consider the true meaning and effect of the two enactments. ...The provisions enacted in Section 52 of the 1922 Act do not alter the nature or quality of the offence enacted in Section 177 of the Penal Code, 1860 but it merely provides a new course of procedure for what was already an offence. In a case of this description the new statute is regarded not as superseding, nor repealing by implication the previous law, but as cumulative.

***

6. ... A plain reading of the section shows that there is no bar to the trial or conviction of the offender under both enactments but there is only a bar to the punishment of the offender twice for the same offence. In other words, the section provides that where an act or omission constitutes an offence under two enactments, the offender may be prosecuted and punished under either or both the enactments but shall not be liable to be punished twice for the same offence.'

35. On a careful consideration, therefore, of the authorities referred to above, the following propositions emerge:

1. That in order to decide the question of repugnancy it must be shown that the two enactments contain inconsistent and 199

irreconcilable provisions, so that they cannot stand together or operate in the same field.

2. That there can be no repeal by implication unless the inconsistency appears on the face of the two statutes.

3. That where the two statutes occupy a particular field, there is room or possibility of both the statutes operating in the same field without coming into collision with each other, no repugnancy results.

4. That where there is no inconsistency but a statute occupying the same field seeks to create distinct and separate offences, no question of repugnancy arises and both the statutes continue to operate in the same field."

(emphasis supplied) ... ... ...

51. The case law referred to above, therefore, yields the following propositions:

51.1. Repugnancy under Article 254 arises only if both the Parliamentary (or existing law) and the State law are referable to List III in the Seventh Schedule to the Constitution of India.

51.2. In order to determine whether the Parliamentary (or existing law) is referable to the Concurrent List and whether the State law is also referable to the Concurrent List, the doctrine of pith and substance must be applied in order to find out as to where in pith and substance the competing statutes as a whole fall. It is only if both fall, as a whole, within the Concurrent List, that repugnancy can be applied to determine as to whether one particular statute or part thereof has to give way to the other.

51.3. The question is what is the subject-matter of the statutes in question and not as to which entry in List III the competing statutes are traceable, as the entries in List III are only fields of legislation; also, the language of 200 Article 254 speaks of repugnancy not merely of a statute as a whole but also "any provision" thereof.

51.4. Since there is a presumption in favour of the validity of statutes generally, the onus of showing that a statute is repugnant to another has to be on the party attacking its validity. It must not be forgotten that that every effort should be made to reconcile the competing statutes and construe them both so as to avoid repugnancy--care should be taken to see whether the two do not really operate in different fields qua different subject-matters.

51.5. Repugnancy must exist in fact and not depend upon a mere possibility.

51.6. Repugnancy may be direct in the sense that there is inconsistency in the actual terms of the competing statutes and there is, therefore, a direct conflict between two or more provisions of the competing statutes. In this sense, the inconsistency must be clear and direct and be of such a nature as to bring the two Acts or parts thereof into direct collision with each other, reaching a situation where it is impossible to obey the one without disobeying the other. This happens when two enactments produce different legal results when applied to the same facts.

51.7. Though there may be no direct conflict, a State law may be inoperative because the Parliamentary law is intended to be a complete, exhaustive or exclusive code. In such a case, the State law is inconsistent and repugnant, even though obedience to both laws is possible, because so long as the State law is referable to the same subject-matter as the Parliamentary law to any extent, it must give way. One test of seeing whether the subject-matter of the Parliamentary law is encroached upon is to find out whether the Parliamentary statute has adopted a plan or scheme which will be hindered and/or obstructed by giving effect to the State law. It can then be said that the State law trenches upon the Parliamentary statute. Negatively put, where Parliamentary legislation does not purport to be 201

exhaustive or unqualified, but itself permits or recognises other laws restricting or qualifying the general provisions made in it, there can be said to be no repugnancy.

51.8. A conflict may arise when Parliamentary law and State law seek to exercise their powers over the same subject-matter. This need not be in the form of a direct conflict, where one says "do" and the other says "don't". Laws under this head are repugnant even if the rule of conduct prescribed by both laws is identical. The test that has been applied in such cases is based on the principle on which the rule of implied repeal rests, namely, that if the subject-matter of the State legislation or part thereof is identical with that of the Parliamentary legislation, so that they cannot both stand together, then the State legislation will be said to be repugnant to the Parliamentary legislation. However, if the State legislation or part thereof deals not with the matters which formed the subject-matter of Parliamentary legislation but with other and distinct matters though of a cognate and allied nature, there is no repugnancy.

51.9. Repugnant legislation by the State is void only to the extent of the repugnancy. In other words, only that portion of the State's statute which is found to be repugnant is to be declared void.

51.10. The only exception to the above is when it is found that a State legislation is repugnant to Parliamentary legislation or an existing law if the case falls within Article 254(2), and Presidential assent is received for State legislation, in which case State legislation prevails over Parliamentary legislation or an existing law within that State. Here again, the State law must give way to any subsequent Parliamentary law which adds to, amends, varies or repeals the law made by the Legislature of the State, by virtue of the operation of Article 254(2) proviso."

(Emphasis supplied) 202

Later, the Apex Court elaborating the law in the case of WEST

UTTAR PRADESH SUGAR MILLS ASSOCIATION AND OTHERS

v. STATE OF UTTAR PRADESH AND OTHERS5 has held as

follows:

"13. Relevant extracts and observations inTika Ramji [Tika Ramji v. State of U.P., AIR 1956 SC 676 : 1956 SCR 393 : 1956 SCJ 625] :

"24. It is clear, therefore, that all the Acts and the notifications issued thereunder by the Centre in regard to sugar and sugarcane were enacted in exercise of the concurrent jurisdiction. The exercise of such concurrent jurisdiction would not deprive the Provincial Legislatures of similar powers which they had under the Provincial Legislative List and there would, therefore, be no question of legislative incompetence qua the Provincial Legislatures in regard to similar pieces of legislation enacted by the latter. The Provincial Legislatures as well as the Central Legislature would be competent to enact such pieces of legislation and no question of legislative competence would arise. It also follows as a necessary corollary that, even though sugar industry was a controlled industry, none of these Acts enacted by the Centre were in exercise of its jurisdiction under Entry 52 of List I. Industry in the wide sense of the term would be capable of comprising three different aspects: (1) raw materials which are an integral part of the industrial process, (2) the process of manufacture or production, and (3) the distribution of the products of the industry. The raw materials would be goods which would be comprised in Entry 27 of List II.

The process of manufacture or production would be comprised in Entry 24 of List II except where the industry was a controlled industry when it would fall within Entry 52 of List I and the products of the industry would also be comprised in Entry 27 of List II except where they were the products of the controlled industries when they would fall within Entry 33 of List III. This being the position, it cannot be said that the legislation which was enacted by the Centre in regard to sugar and sugarcane

5 (2020) 9 SCC 548 203

could fall within Entry 52 of List 1. Before sugar industry became a controlled industry, both sugar and sugarcane fell within Entry 27 of List II but, after a declaration was made by Parliament in 1951 by Act 65 of 1951, sugar industry became a controlled industry and the product of that industry viz. sugar was comprised in Entry 33 of List III taking it out of Entry 27 of List II. Even so, the Centre as well as the Provincial Legislatures had concurrent jurisdiction in regard to the same. In no event could the legislation in regard to sugar and sugarcane be thus included within Entry 52 of List 1. The pith and substance argument also cannot be imported here for the simple reason that, when both the Centre as well as the State Legislatures were operating in the concurrent field, there was no question of any trespass upon the exclusive jurisdiction vested in the Centre under Entry 52 of List 1, the only question which survived being whether, putting both the pieces of legislation enacted by the Centre and the State Legislature together, there was any repugnancy, a contention which will be dealt with hereafter.

25. A more effective answer is furnished by comparison of the terms of U.P. Act 1 of 1938 with those of the impugned Act. Whereas U.P. Act 1 of 1938 covered both sugarcane and sugar within its compass, the impugned Act was confined only to sugarcane, thus relegating sugar to the exclusive jurisdiction of the Centre thereby eliminating all argument with regard to the encroachment by the U.P. State Legislature on the field occupied by the Centre. U.P. Act 1 of 1938 provided for the establishment of a Sugar Control Board, the Sugar Commissioner, the Sugar Commission and the Cane Commissioner. The impugned Act provided for the establishment of a Sugarcane Board. The Sugar Commissioner was named as such but his functions under Rules 106 and 107 were confined to getting information which would lead to the regulation of the supply and purchase of sugarcane required for use in sugar factories and had nothing to do with the production or the disposal of sugar produced in the factories. The Sugar Commission was not provided for but the Cane Commissioner was the authority invested with all the powers in regard to the supply and purchase of sugarcane. The Inspectors appointed under U.P. Act 1 of 1938 had no doubt powers to examine records maintained at the factories showing the amount of sugarcane purchased and crushed but they were there with a view to check the production or manufacture of sugar whereas 204

the Inspectors appointed under the impugned Act were, by Rule 20, to confine their activities to the regulation of the supply and purchase of sugarcane without having anything to do with the further process of the manufacture or production of sugar. Chapter 3 of U.P. Act 1 of 1938, dealing with the construction and extension of sugar factories, licensing of factories for crushing sugarcane, fixing of the price of sugar, etc. was deleted from the impugned Act. The power of licensing new industrial undertakings was thereafter exercised by the Centre under Act 65 of 1951 as amended by Act 26 of 1953, vide Sections 11(a), 12 and 13, and the power of fixation of price of sugar was exercised by the Centre under Section 3 of Act 24 of 1946 by issuing the Sugar (Control) Order, 1950. Even the power reserved to the State Government to fix minimum prices of sugarcane under Chapter V of U.P. Act 1 of 1938 was deleted from the impugned Act the same being exercised by the Centre under Clause 3 of the Sugar and Gur (Control) Order, 1950, issued by it in exercise of the powers conferred under Section 3 of Act 24 of 1946. The prices fixed by the Centre were adopted by the State Government and the only thing which the State Government required under Rule 94 was that the occupier of a factory or the purchasing agent should cause to be put up at each purchasing centre a notice showing the minimum price of cane fixed by the Government meaning thereby the centre. The State Government also incorporated these prices which were notified by the Centre from time to time in the forms of the agreements which were to be entered between the cane growers, the cane growers cooperative societies, the factories and their purchasing agents for the supply and purchase of sugarcane as provided in the U.P. Sugarcane Supply and Purchase Order, 1954. The only provision which was retained by the State Government in the impugned Act for the protection of the sugarcane growers was that contained in Section 17 which provided for the payment of price of sugarcane by the occupier of a factory to the sugarcane growers. It could be recovered from such occupier as if it were an arrear of land revenue. This comparison goes to show that the impugned Act merely confined itself to the regulation of the supply and purchase of sugarcane required for use in sugar factories and did not concern itself at all with the controlling or licensing of the sugar factories, with the production or manufacture of sugar or with the trade and commerce in, and the production, supply and distribution of, sugar. If that was so, there was no question 205

whatever of its trenching upon the jurisdiction of the Centre in regard to sugar industry which was a controlled industry within Entry 52 of List I and the U.P. Legislature had jurisdiction to enact the law with regard to sugarcane and had legislative competence to enact the impugned Act.

26. It was next contended that the provisions of the impugned Act were repugnant to the provisions of Act 65 of 1951 and Act 10 of 1955 which were enacted by Parliament and, therefore, the law made by Parliament should prevail and the impugned Act should, to the extent of the repugnancy, be void. Before dealing with this contention it is necessary to clear the ground by defining the exact connotation of the term "repugnancy". Repugnancy falls to be considered when the law made by Parliament and the law made by the State Legislature occupy the same field because, if both these pieces of legislation deal with separate and distinct matters though of a cognate and allied character, repugnancy does not arise. ...

We are concerned here with the repugnancy, if any, arising by reason of both Parliament and the State Legislature having operated in the same field in respect of a matter enumerated in the Concurrent List i.e. foodstuffs comprised in Entry 33 of List III....

***

31. ... The Calcutta High Court in G.P. Stewart v. Brojendra Kishore Roy Choudhury [G.P. Stewart v. Brojendra Kishore Roy Choudhury, 1939 SCC OnLine Cal 116 : AIR 1939 Cal 628] had occasion to consider the meaning of repugnancy and B.N. Rau, J. who delivered the judgment of the Court observed at p. 632:

'It is sometimes said that two laws cannot be said to be properly repugnant unless there is a direct conflict between them, as when one says "do" and the other "don't", there is no true repugnancy, according to this view, if it is possible to obey both the laws. For reasons which we shall set forth presently, we think that this is too narrow a test: there may well be cases of repugnancy where both laws say "don't" but in different ways. For example, one law may say, 'No person shall sell liquor by retail, that is, in quantities of less than five gallons at a time' and another law may say, 'No person shall sell liquor by retail, that is, in quantities of less than ten gallons at a time'. Here, it 206

is obviously possible to obey both laws, by obeying the more stringent of the two, namely, the second one; yet it is equally obvious that the two laws are repugnant, for to the extent to which a citizen is compelled to obey one of them, the other, though not actually disobeyed, is nullified.'

The learned Judge then discussed the various authorities which laid down the test of repugnancy in Australia, Canada, and England and concluded at p. 634:

'The principle deducible from the English cases, as from the Canadian cases, seems therefore to be the same as that enunciated by Isaacs, J. in the Australian 44 hour case [Clyde Engg. Co. Ltd. v. Cowburn, (1926) 37 CLR 466 (Aust)] if the dominant law has expressly or impliedly evinced its intention to cover the whole field, then a subordinate law in the same field is repugnant and therefore inoperative. Whether and to what extent in a given case, the dominant law evinces such an intention must necessarily depend on the language of the particular law.' ***

33. In the instant case, there is no question of any inconsistency in the actual terms of the Acts enacted by Parliament and the impugned Act. The only questions that arise are whether Parliament and the State Legislature sought to exercise their powers over the same subject-matter or whether the laws enacted by Parliament were intended to be a complete exhaustive code or, in other words, expressly or impliedly evinced an intention to cover the whole field.

35. Act 10 of 1955 included within the definition of essential commodity foodstuffs which we have seen above would include sugar as well as sugarcane. This Act was enacted by Parliament in exercise of the concurrent legislative power under Entry 33 of List III as amended by the Constitution (Third Amendment) Act, 1954. Foodcrops were there defined as including crops of sugarcane and Section 3(1) gave the Central Government powers to control the production, supply and distribution of essential commodities and trade and commerce therein for maintaining or increasing the supplies thereof or for securing their equitable distribution and availability at fair prices. Section 3(2)(b) empowered the Central Government to provide inter alia for bringing under cultivation any waste or 207

arable land whether appurtenant to a building or not for growing thereon of foodcrops generally or specified foodcrops and Section 3(2)(c) gave the Central Government power for controlling the price at which any essential commodity may be bought or sold. These provisions would certainly bring within the scope of Central legislation the regulation of the production of sugarcane as also the controlling of the price at which sugarcane may be bought or sold, and in addition to the Sugar (Control) Order, 1955 which was issued by the Central Government on 27-8-1955, it also issued the Sugarcane (Control) Order, 1955, on the same date investing it with the power to fix the price of sugarcane and direct payment thereof as also the power to regulate the movement of sugarcane.

36. Parliament was well within its powers in legislating in regard to sugarcane and the Central Government was also well within its powers in issuing the Sugarcane (Control) Order, 1955 in the manner it did because all this was in exercise of the concurrent power of legislation under Entry 33 of List III. That, however, did not affect the legislative competence of the U.P. State Legislature to enact the law in regard to sugarcane and the only question which remained to be considered was whether there was any repugnancy between the provisions of the Central legislation and the U.P. State legislation in this behalf. As we have noted above, the U.P. State Government did not at all provide for the fixation of minimum prices for sugarcane nor did it provide for the regulation of movement of sugarcane as was done by the Central Government in Clauses 3 and 4 of the Sugarcane (Control) Order, 1955. The impugned Act did not make any provision for the same and the only provision in regard to the price of sugarcane which was to be found in the U.P. Sugarcane Rules, 1954, was contained in Rule 94 which provided that a notice of suitable size in clear bold lines showing the minimum price of cane fixed by the Government and the rates at which the cane is being purchased by the Centre was to be put up by an occupier of a factory or the purchasing agent as the case may be at each purchasing centre. The price of cane fixed by Government here only meant the price fixed by the appropriate Government which would be the Central Government, under Clause 3 of the Sugarcane (Control) Order, 1955, because in fact the U.P. State Government never fixed the price of sugarcane to be purchased by the factories. Even the provisions in behalf of the agreements contained in Clauses 208

3 and 4 of the U.P. Sugarcane Regulation of Supply and Purchase Order, 1954, provided that the price was to be the minimum price to be notified by the Government subject to such deductions, if any, as may be notified by the Government from time to time meaning thereby the Central Government, the State Government not having made any provision in that behalf at any time whatever. The provisions thus made by the Sugarcane (Control) Order, 1955, did not find their place either in the impugned Act or the Rules made thereunder or the U.P. Sugarcane Regulation of Supply and Purchase Order, 1954, and the provision contained in Section 17 of the impugned Act in regard to the payment of sugarcane price and recovery thereof as if it was an arrear of land revenue did not find its place in the Sugarcane (Control) Order, 1955. These provisions, therefore, were mutually exclusive and did not impinge upon each other there being thus no trenching upon the field of one legislature by the other. Our attention was drawn to the several provisions contained in the Sugarcane (Control) Order, 1955 and the U.P. Sugarcane Regulation of Supply and Purchase Order, 1954 and the agreements annexed thereto and it was pointed out that they differed in material particulars, the provisions of the latter being more stringent than those of the former. It is not necessary to refer to these provisions in any detail. Suffice it to say that none of these provisions do overlap, the Centre being silent with regard to some of the provisions which have been enacted by the State and the State being silent with regard to some of the provisions which have been enacted by the Centre.

There is no repugnancy whatever between these provisions and the impugned Act and the Rules framed thereunder as also the U.P. Sugarcane Regulation of Supply and Purchase Order, 1954 do not trench upon the field covered by Act 10 of 1955. There being no repugnancy at all, therefore, no question arises of the operation of Article 254(2) of the Constitution and no provision of the impugned Act and the Rules made thereunder is invalidated by any provision contained in Act 65 of 1951 as amended by Act 26 of 1953 or Act 10 of 1955 and the Sugarcane (Control) Order, 1955 issued thereunder." (AIR pp. 695-700 & 703-04, paras 24-26 & 31, 33 & 35-36) (emphasis supplied) ... ... ...

24. Question of repugnancy under Article 254 of the Constitution: concerning laws in List III of the Seventh Schedule of the Constitution of India, where both the 209

Union and the States have the power to enact a law, the question of repugnancy arises only in a case where there is an actual irreconcilable conflict between the two laws. Inconsistency between the two laws is irreconcilable, then the question of repugnancy arises. It is necessary to find the dominant intention of both the legislatures, partial or incidental coverage of the same area in a different context, and to achieve a different purpose, does not attract the doctrine of repugnancy.

25. In Rajiv Sarin v. State of Uttarakhand [Rajiv Sarin v. State of Uttarakhand, (2011) 8 SCC 708 : (2011) 4 SCC (Civ) 354] , the Court held: (SCC pp. 721, 723-24, paras 33 &

45)

"33. It is trite law that the plea of repugnancy would be attracted only if both the legislations fall under the Concurrent List of the Seventh Schedule to the Constitution. Under Article 254 of the Constitution, a State law passed in respect of a subject-matter comprised in List III i.e. the Concurrent List of the Seventh Schedule to the Constitution would be invalid if its provisions are repugnant to a law passed on the same subject by Parliament and that too only in a situation if both the laws i.e. one made by the State Legislature and another made by Parliament cannot exist together. In other words, the question of repugnancy under Article 254 of the Constitution arises when the provisions of both laws are completely inconsistent with each other or when the provisions of both laws are absolutely irreconcilable with each other, and it is impossible without disturbing the other provision, or conflicting interpretations resulted into when both the statutes covering the same field are applied to a given set of facts. That is to say, in simple words, repugnancy between the two statutes would arise if there is a direct conflict between the two provisions and the law made by Parliament and the law made by the State Legislature occupies the same field. Hence, whenever the issue of repugnancy between the law passed by Parliament and of the State Legislature is raised, it becomes quite necessary to examine as to whether the two legislations cover or relate to the same subject-matter or different.

*** 210

45. For repugnancy under Article 254 of the Constitution, there is a twin requirement, which is to be fulfilled: firstly, there has to be a "repugnancy" between a Central and State Act; and secondly, the Presidential assent has to be held as being non-existent. The test for determining such repugnancy is indeed to find out the dominant intention of both the legislations and whether such dominant intentions of both the legislations are alike or different. To put it simply, a provision in one legislation in order to give effect to its dominant purpose may incidentally be on the same subject as covered by the provision of the other legislation, but such partial or incidental coverage of the same area in a different context and to achieve a different purpose does not attract the doctrine of repugnancy. In a nutshell, in order to attract the doctrine of repugnancy, both the legislations must be substantially on the same subject."

... ... ...

27. Clause (1) of Article 254 of the Constitution gives primacy to Central legislations in case of conflict with State laws whether enacted before or after. The Central law operates only in case of repugnancy and not in a case of mere possibility when such an order might be issued under State law, as opined in Belsund Sugar Co. Ltd. v. State of Bihar [Belsund Sugar Co. Ltd. v. State of Bihar, (1999) 9 SCC 620] ; Punjab Dairy Development Board v. Cepham Milk Specialities Ltd. [Punjab Dairy Development Board v. Cepham Milk Specialities Ltd., (2004) 8 SCC 621] ; Southern Petrochemical Industries Co. Ltd. v. Electricity Inspector & ETIO [Southern Petrochemical Industries Co. Ltd. v. Electricity Inspector & ETIO, (2007) 5 SCC 447] and Bharat Hydro Power Corpn. Ltd. v. State of Assam [Bharat Hydro Power Corpn. Ltd. v. State of Assam, (2004) 2 SCC 553]."

(Emphasis supplied)

The Apex Court after complete analysis of the law holds that Clause

(1) of Article 254 of the Constitution gives primacy to Central 211

legislation in case of conflict with the State law. The Central law

operates only in case of repugnancy and not in the case of mere

possibility of such repugnancy. What would unmistakably emerge

from the aforesaid law is that, repugnancy must exist in fact and

not depend upon mere possibility. Onus to prove repugnancy is on

the party attacking the validity of the statute. Question of

repugnancy would not arise if both the legislations partially or

independently cover the same area in different context and to

achieve different purpose. Repugnancy would arise only if there is

direct conflict. In the considered view of this Court, repugnancy

would arise only if the field is occupied in its entirety by a law made

by the Parliament and the law made by the State Government

would seek to percolate into the said law, which by itself was

comprehensive.

13. The Apex Court in the case of TAMIL NADU MEDICAL

OFFICERS ASSOCIATION AND OTEHRS v. UNION OF INDIA

AND OTHERS6 has held as follows:

"3.3. There is no question of any conflict of List III Entry 25 and List I Entry 66. The subject of admission to courses is 6 (2021) 6 SCC 568 212

referable to List III Entry 25 and not List I Entry 66. It is submitted that conflict, if any, can only be between a State law and a Central law both sourced to List III Entry 25. That no such conflict is present in the instant case.

... ... ...

10. While considering the aforesaid issues, let us first consider the scope and ambit of List I Entry 66 -- legislative competence of the Union in exercise of powers under Schedule VII List I Entry 66 of the Constitution of India.

10.1. In Modern Dental College & Research Centre [Modern Dental College & Research Centre v. State of M.P., (2016) 7 SCC 353 : 7 SCEC 1] , a Constitution Bench of this Court again had an occasion to deal with and consider List I Entry 66 and List III Entry 25. After considering a catena of decisions of this Court, more particularly, the decisions of this Court in Gujarat University [Gujarat University v. Krishna Ranganath Mudholkar, AIR 1963 SC 703 : 1963 Supp (1) SCR 112] ; R. Chitralekha [R. Chitralekha v. State of Mysore, (1964) 6 SCR 368 : AIR 1964 SC 1823] ; Preeti Srivastava [Preeti Srivastava v. State of M.P., (1999) 7 SCC 120 : 1 SCEC 742]; and Bharati Vidyapeeth v. State of Maharashtra [Bharati Vidyapeeth v. State of Maharashtra, (2004) 11 SCC 755 : 2 SCEC 535] , it is held by this Court that List I Entry 66 is a specific entry having a very specific and limited scope. It is further observed by this Court that it deals with "coordination and determination of standards" in institution of higher education or research as well as scientific and technical institutions. The words "coordination and determination of standards" would mean laying down the said standards. It is observed that thus, when it comes to prescribing the standards for such institutions of higher learning, exclusive domain is given to the Union. The relevant observations are in paras 101 to 105, which read as under : (Modern Dental College & Research Centre case [Modern Dental College & Research Centre v. State of M.P., (2016) 7 SCC 353 : 7 SCEC 1] , SCC pp. 429-432)

"101. To our mind, List I Entry 66 is a specific entry having a very specific and limited scope. It deals with coordination and determination of standards in institution of higher education or research as well as scientific and 213

technical institutions. The words "coordination 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 coordination and determination of standards, insofar as medical education is concerned, is achieved by parliamentary legislation in the form of the Indian Medical Council 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 coordination 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 List III Entry 25, 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 List II Entry 11 [ "11. "Education" including universities, subject to the provisions of List I Entries 63, 64, 65 and 66 and List III Entry 25."] . 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 3-7-1977 and at the same time List II Entry 25 was amended [ Unamended List III Entry 25 read as:"Vocational and technical training of labour."] . Education, including University education, was thus transferred to the 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, coexist, they have to be read harmoniously. Reading in this manner, it would become manifest that when it comes to coordination 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 List III 214

Entry 25 is wide enough and as circumscribed to the limited extent of it being subject to List I Entries 63, 64, 65 and 66.

102. 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 calibre 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 thought 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 List I Entry 66 with the objective of maintaining uniform standards of education in fields of research, higher education and technical education.

103. The second/other aspect of education is with regard to the implementation of the standards of education determined by Parliament, and the regulation of the complete activity of education. This activity necessarily entails the application of the standards determined by Parliament in all educational institutions in accordance with the local and regional needs. Thus, while List I Entry 66 dealt with determination and coordination of standards, on the other hand, the original List II Entry 11 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 List III Entry 25 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 List I Entries 63 to 66.

215 104. No doubt, in Bharati Vidyapeeth [Bharati Vidyapeeth v. State of Maharashtra, (2004) 11 SCC 755 : 2 SCEC 535] it has been observed that the entire gamut of admission falls under List I Entry 66. The said judgment by a Bench of two Judges is, however, contrary to law laid down in earlier larger Bench decisions. In Gujarat University [Gujarat University v. Krishna Ranganath Mudholkar, AIR 1963 SC 703 : 1963 Supp (1) SCR 112] a Bench of five Judges examined the scope of List II Entry 11 (which is now List III Entry 25) with reference to List I Entry

66. It was held that the power of the State to legislate in respect of education to the extent it is entrusted to 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 List I Entry 66 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 [R. Chitralekha v. State of Mysore, (1964) 6 SCR 368 : AIR 1964 SC 1823] the same issue was again considered. It was observed that if the impact of the 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. v. Adhiyaman Educational & Research Institute [State of T.N. v. Adhiyaman Educational & Research Institute, (1995) 4 SCC 104 : 1 SCEC 682] , 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 Preeti Srivastava [Preeti Srivastava v. State of M.P., (1999) 7 SCC 120 : 1 SCEC 742] and State of Maharashtra v. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya [State of Maharashtra v. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya, (2006) 9 SCC 1 : 5 SCEC 637] . Though the view taken in State of M.P. v. Nivedita Jain [State of M.P. v. Nivedita Jain, (1981) 4 SCC 296] and Ajay Kumar Singh v. State of Bihar [Ajay Kumar Singh v. State of Bihar, (1994) 4 SCC 401] to the effect that admission standards covered by List I Entry 66 could apply only post admissions was overruled in Preeti Srivastava [Preeti Srivastava v. State of M.P., (1999) 7 SCC 120 : 1 SCEC 742] , it was not held that the entire gamut of admissions was covered by List I as wrongly assumed 216

in Bharati Vidyapeeth [Bharati Vidyapeeth v. State of Maharashtra, (2004) 11 SCC 755 : 2 SCEC 535] .

105. We do not find any ground for holding that Preeti Srivastava [Preeti Srivastava v. State of M.P., (1999) 7 SCC 120 : 1 SCEC 742] excludes the role of States altogether from admissions. Thus, observations in Bharati Vidyapeeth [Bharati Vidyapeeth v. State of Maharashtra, (2004) 11 SCC 755 : 2 SCEC 535] that entire gamut of admissions was covered by List I Entry 66 cannot be upheld and overruled to that extent. No doubt, List III Entry 25 is subject to List I Entry 66, it is not possible to exclude the entire gamut of admissions from List III Entry 25. However, exercise of any power under List III Entry 25 has to be subject to a Central law referable to Entry 25."

(emphasis in original) ... ... ..

10.3. Thus, as held by the Constitution Bench of this Court in Modern Dental College [Modern Dental College & Research Centre v. State of M.P., (2016) 7 SCC 353 : 7 SCEC 1] , in which this Court considered a catena of earlier decisions of this Court dealing with the scope and ambit of List I Entry 66, List I Entry 66 is a specific entry having a very specific and limited scope; it deals with "coordination and determination of standards" in institutions of higher education or research as well as scientific and technical institutions. It is further observed that the words "coordination and determination of standards" would mean 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. It is specifically further observed that 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. Thus, in exercise of powers under List I Entry 66, 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 List III Entry 25. In exercise of powers under List III Entry 25, the States have power to make provision for mode of admissions, looking to the requirements and/or need in the State concerned.

... ... ...

217 11.2. The MCI Regulations, 2000 are framed by MCI in exercise of its powers conferred under Section 33 of the Indian Medical Council Act, 1956. The Indian Medical Council Act, 1956 has been enacted/passed by the Union in exercise of powers conferred under List I Entry 66. Therefore, the main source of power of MCI would be from List I Entry 66. As per Section 33 of the MCI Act, the Council may with the previous sanction of the Central Government make regulations generally to carry out the purpose of the said Act. Therefore, in exercise of powers under Section 33 of the MCI Act, the Regulations 2000 are made by MCI. As observed hereinabove, MCI draws the power from List I Entry 66. As observed hereinabove, List I Entry 66 is a specific entry having a very specific and limited scope which deals with "coordination and determination of standards" of higher education for research as well as scientific and technical institutions. In fact, such "coordination and determination of standards", insofar as medical education is concerned, is achieved by parliamentary legislation in the form of the Indian Medical Council Act, 1956 and by creating the statutory body like MCI. The functions that are assigned to MCI include within its sweep "determination of standards" in a medical institution as well as "coordination of standards" and that of educational institutions. As discussed hereinabove, when it comes to regulating "education" as such, which includes even medical education as well as universities, that is prescribed in List III Entry 25.

... .... ...

13. The sum and substance of the above discussion would be that:

... .... ...

13.5. That Regulation 9 of the MCI Regulations, 2000 does not deal with and/or make provisions for reservation and/or affect the legislative competence and authority of the States concerned 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 States concerned 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 List III Entry 25.

218 ... ... ...

17.1. 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 healthcare facilities for its citizens by upgrading the qualifications of the existing in-service doctors so that the citizens may get more specialised healthcare 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.

... ... ...

17.3. In a recent decision in Assn. of Medical Superspeciality Aspirants & Residents v. Union of India [Assn. of Medical Superspeciality Aspirants & Residents v. Union of India, (2019) 8 SCC 607] , it is observed and held by this Court in paras 25 and 26 as under : (SCC p. 625)

"25. It is for the State to secure health to its citizens as its primary duty. No doubt the Government is rendering this obligation by opening government hospitals and health centres, but in order to make it meaningful, it has to be within the reach of its people, as far as possible, to reduce the queue of waiting lists, and it has to provide all facilities to employ best of talents and tone up its administration to give effective contribution, which is also the duty of the Government [State of Punjab v. Ram Lubhaya Bagga, (1998) 4 SCC 117 : 1998 SCC (L&S) 1021] .

26. Right to health is integral to the right to life. Government has a constitutional obligation to provide health facilities [State of Punjab v. Mohinder Singh Chawla, (1997) 2 SCC 83 : 1997 SCC (L&S) 294] . The fundamental right to life which is the most precious human right and which forms the ark of all other rights must therefore be interpreted in a broad and expansive spirit so as to invest it with significance and vitality which may endure for years to come and enhance the dignity of the individual and the worth of the human person. The right to life enshrined in Article 21 cannot be restricted to mere animal existence. It means something much more than just physical survival. The right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter, and facilities for reading, writing and expressing oneself in 219

diverse forms, freely moving about and mixing and commingling with fellow human beings."

17.4. A healthy body is the very foundation for all human activities. In a welfare State, therefore, it is the obligation of the State to ensure the creation and the sustaining of conditions congenial to good health. Maintenance and improvement of public health have to rank high as these are indispensable to the very physical existence of the community and on the betterment of these depends the building of the society of which the Constitution-makers envisaged. It is observed by this Court in Vincent Panikurlangara v. Union of India [Vincent Panikurlangara v. Union of India, (1987) 2 SCC 165 : 1987 SCC (Cri) 329 : AIR 1987 SC 990] that "attending to public health is of high priority, perhaps the one at the top". It is the primary duty of a welfare State to ensure that medical facilities are adequate and available to provide treatment.

... .... ...

17.9. As observed hereinabove, Article 21 of the Constitution of India imposes an obligation on the State to safeguard the life of every person. Preservation of human life is thus of paramount importance. Thus, 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 List III Entry 25, read with List II Entry 6. 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. As observed hereinabove, the occupied field of Union legislation in exercise of power under List I Entry 66 is related to minimum standards of medical education and the State is providing the in-service quota without impinging the prescribed minimum standards. It is a settled proposition of law that in case of two entries that might be overlapping, in that case, the interpretation must be in furtherance of achieving the ultimate object, in the present case to provide better healthcare in the rural, tribal and difficult areas. Any interpretation which would negate and/or become nugatory the other entry, is to be avoided. There must be a harmonious reading between the two entries. In the present case, as such and as observed 220

hereinabove, there shall not be any conflict between the power of the Union and the State, while exercising the powers under List I Entry 66 by the Union and under List III Entry 25 by the States. Therefore, as such, the State is within its power and is empowered to make reservation in the seats of the postgraduate medical courses, more particularly, for in-service doctors.

... ... ... Conclusions

23. The sum and substance of the above discussion and conjoint reading of the decisions referred to and discussed hereinabove, our conclusions are as under:

23.1. That List I Entry 66 is a specific entry having a very limited scope.

... ... ...

53. From a composite reading of these authorities, the position of law as emerges, is that all aspects of admission cannot be said to be covered by Entry 66 of the Union List, even if the entire admission process is incorporated in a single code. Certain aspects of admission stipulated by the State may trespass into legislative zone of "coordination and determination of standards". One illustration of such potential trespass would be lowering the eligibility criteria for admission fixed by a Union legislation, the 2000 Regulations in this case. In such a situation, the State would be encroaching upon exclusive field of the Union. The case of Preeti Srivastava [Preeti Srivastava v. State of M.P., (1999) 7 SCC 120 : 1 SCEC 742] was decided broadly on this rationale.

54. But there can be rules on facets of admission process in institutions of higher education framed by the State Legislature which would not have impact on the subjects enumerated against Entry 66 of the Union List, and thus would not result in conflict with the latter. While analysing the State's power to legislate under Schedule VII List II Entry 11 of the Constitution, as it originally existed, it has been observed in Modern Dental College [Modern Dental College & Research Centre v. State of M.P., (2016) 7 SCC 353 : 7 SCEC 1] (at 221

SCC p. 431, para 103) that "... except the determination of minimum standards and coordination which was in national interest", the State had power to legislate with respect to all other aspects of education.

... ... ...

72. In Modern Dental College [Modern Dental College & Research Centre v. State of M.P., (2016) 7 SCC 353 : 7 SCEC 1] , it has been explained, the manner in which List I Entry 66 ought to be interpreted while dealing with admission to postgraduate medical admission course. It has been held in this judgment that the said entry in List I is having a very specific and limited scope. It has also been held in the said decision that while setting standards in educational institutions for higher studies would be in the exclusive domain of the Union, that might not include conducting of examination, etc. Regulating medical education would come within List III Entry 25 giving concurrent powers to both Union as well as States. In Modern Dental College [Modern Dental College & Research Centre v. State of M.P., (2016) 7 SCC 353 : 7 SCEC 1], the rules for admission into medical postgraduate courses framed by the State Government were assailed.

... ... ...

84. When a subject falls in a shared field of legislation, there may be cases where the dominant legislative body may not have had made provisions in a legislative instrument for which it had power to do so. But in such a situation the dominant legislative body cannot prevent the secondary legislative body from making provisions in that regard. We would make it clear here that we are using the terms "dominant legislative body" to describe the Union Legislature and "secondary legislative body" to refer to the State Legislature in the context of the Concurrent List only. We are doing so because in case of repugnancy between two legislative instruments originating from the Union and the State Legislatures in relation to any entry therein, the former is to prevail as per the constitutional scheme. Turning back to the aspect of occupied field, if certain areas of legislative entry are left void by the Union Legislature, these void areas would come within the legislative power of the secondary legislative body as the constitutional entry gives both the legislative bodies co-

existing, power to legislate on such subjects.

... ... ...

222 97. We also expect that the statutory instruments of the respective State Governments providing for such separate channel of entry should make a minimum service in rural or remote or difficult areas for a specified period mandatory before a candidate could seek admission through such separate channel and also subsequent to obtaining the degree. On completion of the course, to ensure the successful candidates serve in such areas, the State shall formulate a policy of making the in-service doctors who obtain entry in postgraduate medical degree courses through independent in-service channel execute bonds for such sum the respective States may consider fit and proper."

(Emphasis supplied)

The Apex Court holds that Entry 66 of List-I and Entry 25 of List-III

are overlapping entries and must be interpreted to achieve the

ultimate object. The Apex Court considers that the field of higher

education strictly affects the growth and development of the State.

Therefore, it is the prerogative of the State to take steps towards

the welfare of the people. This being the law, the submission of

repugnancy needs to be repelled, as the NMC Act comes about in

the year 2019. The Act does not restrict the powers of the State to

regulate education in terms of Entry-25 of List-III of the Seventh

Schedule. If what is considered by the Apex Court in the case of

T.N. MEDICAL OFFICERS ASSOCIATION (supra) is taken note

of, the submission of the learned senior counsel that it is repugnant 223

becomes unacceptable. Therefore, I hold that Act 2012 is not

repugnant to NMC Act, 2019. The issue is answered against the

petitioners.

ISSUE NO.3:

(iii) Whether imposition of compulsory rural service

and execution of bond under the amended Rule 11

of the 2006 Rules are valid in law?"

14. This issue relates to imposition of compulsory rural

service on the students and make them ineligible to get enrolled

either in the National register or the State register unless they

complete such rural service. The State promulgates the Karnataka

Compulsory Service by Candidates Completed Medical Courses Act,

2012. The State Government had notified Karnataka Professional

Educational Institutions (Regulation of Admission and Determination

of Fee) Act, 2006. Under the said Act, Rules came to be notified

viz., the Karnataka Selection of Candidates for Admission to

Government seats in Professional Educational Institutions Rules 224

2006. Rule 11 of the said Rules of 2006 comes to be amended by

issuance of a notification on 17-07-2012. The amendment to the

Rules reads as follows:

"GOVERNMENT OF KARNATAKA No.MED 79 RGU 2011 Karnataka Government Secretariat, M.S. Building, Bangalore, Dated: 17-07-2012.

NOTIFICATION-01

In exercise of the powers conferred by Section 14 of the Karnataka Educational Institutions (Prohibition of Capitation fee) Act, 1984 (Karnataka Act 37 of 1984), the Government of Karnataka hereby makes the following rules, further to amend the Karnataka Selection of Candidates for Admission to Government Seats in Professional Educational Institutions Rules, 2006, namely, -

RULES

1. Title and commencement, - (1) These rules may be called the Karnataka Selection of Candidates for Admission to Government Seats in Professional Educational Institutions (Amendment) Rules, 2012.

2. They shall come into force from the date of their publication in the Official Gazette.

3. Amendment of rule 11.- In the Karnataka Selection of Candidates for Admission to Government Seats in Professional Educational Institutions Rules, 2012, for rule 11, the following shall be substituted namely, -

"11. - Execution of Bond by Candidates Selecting Medical Seats (MBBS) in Government and Private Colleges, - A candidate who selects MBBS seat in any of the Medical Colleges run by the Government of Karnataka or Government seats in Private Medical Colleges is required to execute a bond 225

(signed by the candidate and parent) giving an undertaking that he is prepared to serve in any Government primary Health Centres or Government Primary Health Unit in rural areas of Karnataka on completion of the course for a minimum period of one year and that in default thereof, the candidate shall be liable to pay a penalty of rupee ten lakh to Government.

By orders and in the name of the Governor of Karnataka

(MAHABOOB KHAN) Under Secretary to Government-2, Health and Family Welfare Department, (Medical Education)."

(Emphasis supplied)

The amended Rule 11 mandates execution of a bond by candidates

selected for medical seats in Government and private colleges run

under the Government quota giving an undertaking that he/she is

prepared to serve in any Government Primary Health Centres or

Government Primary Health Unit in rural areas of Karnataka on

completion of the course for a minimum period of one year and in

default thereof, the candidate shall be liable to pay a penalty of

rupees ten lakhs to the Government. These rules would come into

force from the date of their publication in the Official Gazette. It is

an admitted fact that the Rules are notified in the Official Gazette 226

only on 22-07-2022, ten years and five days after the amendment.

It is further a matter of record that insistence on compulsory rural

service for one year, after the completion of the course, is sought to

be imposed on the basis of the afore-quoted notification, which

amends Rule 11. In the event the candidate would not complete

compulsory service, hefty fine is also found in the said amendment

itself. The amendment did not see the light of the day till

22-07-2022, as it was gazetted only then. Therefore, the bond so

sought to be executed, a bond of compulsory service, is in terms of

a Rule that had not been gazetted, notwithstanding the fact that

the Rule itself observes that it shall come into effect, only on its

publication in the official gazette.

15. The submission of the State is that though the notification

was made on 17-07-2012 and published in the Official Gazette only

on 22-07-2022, it would not invalidate the bond that was sought or

the compulsory rural service that is indicated in the amended rule.

It is the submission of the State that all the candidates were made

aware of the said notification of the amendment as the same is

reflected in all the bonds executed by the petitioners. Though the 227

notification is not immediately gazetted, the submission is that it

would not vitiate validity of the notification only on the ground that

the petitioners were aware of the said notification. These

submissions are noted only to be rejected. The laudable object of

the State to enforce compulsory rural service upon the petitioners,

particularly where the petitioners were beneficiaries of seats in

Government colleges or under Government quota in private medical

colleges should be directed to undergo rural service, but that should

be in accordance with law. The petitioners are students who do not

know the law. Merely because the petitioners are aware of the

amendment, the State cannot act contrary to law. What is depicted

in all the contracts signed is they are seeking signatures on the

dotted lines in terms of the amended Rule 11. I deem it

appropriate to notice the corrigendum dated 17-06-2021 and it

reads as follows:

"Government of Karnataka Commissionerate of Health & Family Welfare Services, Arogya Soudha, Magadi Road, Bengaluru-560 023.

No.DHS/BEC/07/2021-22 Date: 17.06.2021 Corrigendum 228

In the NotificationNo.DHS/BEC/07/2021-22 published in https://karunadu. Karnataka.gov.in/hfw on 8th June 2021 in first paragraph in first page, it was mentioned as "As per the provisions of the "Karnataka Compulsory Service Training by Candidates Completed Medical Courses Act, 2012 (Karnataka Act 26 of 2015)", and as per Karnataka Compulsory Service Training by Candidates Completed Medical Courses (Counseling, Allotment and Certification) Rules, 2015, all candidates who have successfully completed and passed in their final examination MBBS 2021 have to serve the Government" this shall be read as "As per the provisions and in accordance with the Amendment to Rule 11 of the Karnataka Selection of Candidates for Admission to Government seats in Professional Educational Institutions Rules, 2006, vide Government Notification-1, No.HFW.79.RGU.2011, dated 17-07- 2012, all candidates who got admitted to MBBS course under Government quota in any of the Medical Colleges run by the Government of Karnataka or Government seats in Private Medical Colleges during 2015-16 academic year and who have executed bond and have successfully completed MBBS course (including internship) shall serve the Government."

Serial No.13: Penalty which was mentioned as "whoever contravenes any of the provisions specified in Rules shall be punished with a fine not less than rupees fifteen lakhs but may extend up-to rupees thirty lakhs" in page No.3 shall be read as whoever contravenes any of the provisions specified in rules will be liable to pay a penalty of rupees ten lakh to Government.

Revised calendar of events

i Last day of option entry by 18th June 2021 candidates ii Processing of results and 19th & 20th June 2021 verification iii Announcing of results 22nd June 2021 iv Date of start of Government 30th June2021" service 229

The corrigendum makes one fact abundantly clear that as per the

provisions and in accordance with the amendment to Rule 11 of the

2006 Rules, as also in terms of Government notification dated

17-07-2012, all candidates who get admitted to MBBS course under

Government quota in any of the medical colleges run by the

Government of Karnataka or Government seats in private medical

colleges shall serve the Government by execution of a bond. The

bond so sought to be executed by the State is as follows:

"Execution of bond by Candidates who select MBBS seats in Government Medical Colleges OR Government seats in Private Medical Colleges (on Rs.100/- e-Stamp Paper)

I, Mr./Kum..................S/o,/D/o.................. a candidate with 'CET-2012' Admission Ticket No........ residing at....... Have on my own volition allotted a MBBS seat on ...... in..... vide admission order number..........dated..... and do hereby undertake as follows:

In accordance with the Amendment to Rule 11 of the Karnataka Selection of Candidates for Admission to Government seats in Professional Educational Institutions Rules, 2006, vide Government Notificaiton-1. No.HFW 79 RGU 2011 dated 17-07-2012, I am prepared on completion of the course to serve in any Primary Health Center or Primary Health Unit situated in Rural Areas in the State of Karnataka for a minimum period of ONE year, failing which I render myself liable to pay a penalty of Rupees Ten Lakhs to Government of Karnataka.

What is stated above is true and correct and I and my parent hereby undertake to act accordingly.

230

Signature of the candidate Signature of parent Date: (Father/Mother)" Place: (Emphasis supplied)

The execution of bond is in accordance with the Amendment to Rule

11 of the Rules notified on 17-07-2012. Therefore, the bond that is

sought to be executed is in furtherance of the Rules dated

17-07-2012 and the corrigendum issued on 17-06-2021 to the

Rules. Penalty is also indicative of the fact in the Rules. The

difference between the Rule which stood prior to the amendment

and the Rule that comes about in the corrigendum is as follows:

"As per Original Rule 11 before amendment:

a. Applicable only to students admitted to Medical colleges run by Government of Karnataka.

b. Student is required to do compulsory service in Rural areas of Karnataka.

c. In default, student liable to pay a penalty of Rs One Lakh.

Rule 11 was amended by a notification dated 17-07-2012 and as per this amended notification:

a. Applicable to students admitted to Medical colleges run by Government of Karnataka or government students in private medical colleges.

b. In case of default a fine was increased from Rs One Lakh to Rs 10 lakhs.

231 c. Amended rule shall come into force on the date of publication in the official Gazette."

As observed hereinabove, Section 14 of the Karnataka Educational

Institutions (Prohibition of Capitation Fee) Act, 1984 empowered

the State to make Rules. The State has made the Rules on

17-07-2012 by a notification and has issued a corrigendum to the

said Rules in the year 2021. All the students have been asked to

sign on the dotted lines including their parents is a matter of record

and it is in terms of the Rules and the corrigendum. The

notification dated 17-07-2012 is quoted hereinabove. The said

amended Rule is to come into effect on the date of publication in

the Official Gazette. It is gazetted on 22-07-2022 - 10 years after

the promulgation of the Rules. The State appears to have been in

deep slumber or having a siesta for 10 years. If the Rule itself

depicts that it would come into effect on the date of its publication

in the Official Gazette, the Rule that just stood on paper before

publication was inchoate. On an inchoate Rule, the State has sought

to impose certain conditions upon students.

232 16. The submission of the learned Additional Advocate

General that non-publication of the Rule in the Official Gazette

would not amount to the rule not being enforceable is noted only to

be rejected. There is some significance for an observation in the

rule that it would come into force on the date of its publication in

the Official Gazette, as there are such scores and scores of Rules

which have been on paper and not enforced, in the light of the fact

that they are not published in the Official Gazette, as was required

in law. It is also in public domain that several notifications issued by

the respective Governments or Union Government have all lapsed

for them being not notified in the Official Gazette as the rule

requires to do so and one such is the present rule.

17. It becomes apposite to refer to the judgment of the Apex

Court on the issue. The Apex Court in the case of RAJENDRA

AGRICULTURAL UNIVERSITY v. ASHOK KUMAR PRASAD7 has

held as follows:

".... .... ....

15. Learned counsel therefore submitted that the principle that a subordinate legislation which is not published

7 (2010) 1 SCC 730 233

cannot come into effect nor enforced against any member of the public, for want of knowledge to the public, in the absence of publication, cannot apply where a Statute is made, as in this case, for the benefit of a specific and small class of persons, that is the teaching faculty of the University, and the making of the said Statute is otherwise known to all the teaching faculty, and when the teachers for whose benefit it is made seek implementation of the Statute. It was contended that in such a case, the non-publication of the Statute in the Official Gazette cannot be put forth as an objection for its implementation.

16. We have carefully considered the contention of the respondents. Many of the Statutes which the University is empowered to frame deal with topics which fall in public domain, affecting or relevant to general public. For example, Item 4 of Section 35 relates to classification, qualification and manner of appointment of teachers and other non-teaching staff. Item 9 relates to the manner of appointment and selection of officers other than Vice-Chancellor, and their powers, terms and conditions of service. Item 16 relates to entrance or admission of students to a university and their enrolment and continuance as such and the conditions and procedure for dropping student from enrolment. Item 17 relates to fees which may be charged by a university. Item 21 relates to maintenance of discipline among students of a university. Item 26 relates to conditions and mode of appointment and the duties of examining bodies and examiners.

17. Any person interested in appointment in the university service as a teacher or non-teaching staff or officer is entitled to know the qualifications prescribed for the post and the manner/mode of selection and appointment. The students or prospective students are entitled to know the fees which may be charged by the university. The Statute made for maintenance of discipline amongst the students concerns the large body of the student community which keeps changing periodically. If the Statutes made on these topics are not published in the Official Gazette, the persons concerned may never come to know about them. Therefore, the provision contained in Section 36(4) requiring publication of Statutes in the Official Gazette, which applies to all Statutes framed by the University, has to be treated mandatory. The fact that a particular 234

Statute may not concern the general public, but may affect only a specified class of employees, is not a ground to exclude the applicability of the mandatory requirement of publication in the Official Gazette, to that Statute in the absence of an exception in Section 36(4) of the Act.

18 [Ed.: Para 18 corrected vide Official Corrigendum No. F.3/Ed.B.J./3/2010 dated 6-1-2010.]. The question can be looked at from another perspective also. The contentions urged by the respondents may be good grounds for the legislature to conclude that there need not be a provision in the Act for publication in the Official Gazette, when they relate to a small section of employees of the University and consequently, amend Section 36(4) providing for a simpler mode of publication in such cases. But the contentions are not relevant grounds for holding that a statutorily enacted mandatory requirement relating to publication in the Official Gazette, is directory. The respondents cannot by importing the reasons for making a statutory provision, or the object of making a statutory provision, attempt to defeat the specific and unambiguous mandatory requirements of that statutory provision.

19. As noticed above, several reasons might have contributed to making of a statutory provision providing for publication of all Statutes in the Official Gazette. All those reasons may not apply or exist in regard to making of an individual statute. But once the law lays down that publication of a Statute in the Official Gazette is a part of the process of making a statute, the object of making such a provision for publication recedes into the background and becomes irrelevant, and on the other hand, fulfilment of the requirement to make public the Statute by publication in the Official Gazette becomes mandatory and binding.

20. We may illustrate the position by an example:

If a two-way street is declared as a one-way street, the reason for such declaration may be that the traffic was heavy and the two-way traffic was causing chaos, creating bottlenecks and impeding smooth flow of traffic. The object of declaring the street to be a one-way street may be to ease the traffic and provide road safety and 235

traffic discipline. But once the street is declared to be a one-way, a car driver charged with the offence of driving on the wrong way, cannot defend his wrong act by contending that when he was going the wrong way, there was not much traffic on the road, and therefore, there was no need for the street to be a one-way and the declaration of the street as one-way should be treated as directory or optional. Once the street is declared to be a one-way street, even if there is no heavy traffic, vehicle drivers should use it as one-way street. The remedy if any is not to treat the requirement as directory or optional, but to require the authority concerned to restrict the declaration to peak hours.

21. In B.K. Srinivasan v. State of Karnataka [(1987) 1 SCC 658] this Court explained why publication in the gazette was mandatory and necessary in regard to subordinate legislations: (SCC p. 672, para 15)

"15. There can be no doubt about the proposition that where a law, whether parliamentary or subordinate, demands compliance, those that are governed must be notified directly and reliably of the law and all changes and additions made to it by various processes. Whether law is viewed from the standpoint of the 'conscientious good man' seeking to abide by the law or from the standpoint of Justice Holmes' 'unconscientious bad man' seeking to avoid the law, law must be known, that is to say, it must be so made that it can be known. We know that delegated or subordinate legislation is all-pervasive and that there is hardly any field of activity where governance by delegated or subordinate legislative powers is not as important if not more important, than governance by parliamentary legislation. But unlike parliamentary legislation which is publicly made, delegated or subordinate legislation is often made unobtrusively in the chambers of a Minister, a Secretary to the Government or other official dignitary. It is, therefore, necessary that subordinate legislation, in order to take effect, must be published or promulgated in some suitable manner, whether such publication or promulgation is prescribed by the parent statute or not. It will then take effect from the date of such publication or promulgation. Where 236

the parent statute prescribes the mode of publication or promulgation that mode must be followed."

(emphasis supplied)

However, if the parent law had been silent about the manner of publishing or notifying the Statute, and had not prescribed publication in the Official Gazette as the mode of publication, the contentions of respondents might have merited some consideration. But when the Act clearly provided that the Statute required publication in the gazette, the requirement became mandatory.

22. In fact, in B.K. Srinivasan [(1987) 1 SCC 658] this Court explained the position, if the parent Act was silent about publication in the gazette: (SCC pp. 672-73, para 15)

"15. ... Where the parent statute is silent, but the subordinate legislation itself prescribes the manner of publication, such a mode of publication may be sufficient, if reasonable. If the subordinate legislation does not prescribe the mode of publication or if the subordinate legislation prescribes a plainly unreasonable mode of publication, it will take effect only when it is published through the customarily recognised official channel, namely, the Official Gazette or some other reasonable mode of publication. There may be subordinate legislation which is concerned with a few individuals or is confined to small local areas. In such cases publication or promulgation by other means may be sufficient."

23. The decision of this Court in I.T.C. Bhadrachalam Paperboards v. Mandal Revenue Officer [(1996) 6 SCC 634] also throws considerable light on this issue. In that case, Section 11 of the Andhra Pradesh Non-Agricultural Land Assessment Act, 1963 conferred upon the Government the power to exempt any class of non-agricultural land from the levy by an order published in the Andhra Pradesh Gazette. The State Government issued GOMs No. 201 dated 17-12-1976 providing certain exemptions including exemption from non-agricultural land assessment, by way of an incentive and concession to industries to be established in certain scheduled areas, the object being to provide rapid industrialisation of those backward areas. The said 237

order was not published in the Official Gazette. One of the questions considered by this Court was whether the government order which did not comply with the mandatory requirement of publication in the gazette could be relied on by a person who acted upon it, to invoke the principle of promissory estoppel against the Government and claim the benefit under the government order on the ground that it contained a promise or representation held out by the Government to the members of the public.

24. This Court in Bhadrachalam case [(1996) 6 SCC 634] held that the requirement under Section 11 of the Act relating to publication of the government order in the gazette, was mandatory and that where an enactment requires an act (making a government order) to be done by the Government only in the manner prescribed therein, then non-compliance with the mandatory statutory requirement will make the act (making of a government order) invalid and consequently, the government order cannot be considered as a valid and binding one, nor as a representation held out by the Government, creating any right to seek the benefit of that government order by invoking the principle of promissory estoppel against the Government.

25. This Court held: (Bhadrachalam case [(1996) 6 SCC 634] , SCC pp. 657-58, para 30)

"30. Shri Sorabjee next contended that even if it is held that the publication in the gazette is mandatory yet GOMs No. 201 can be treated as a representation and a promise and inasmuch as the appellant had acted upon such representation to his detriment, the Government should not be allowed to go back upon such representation. It is submitted that by allowing the Government to go back on such representation, the appellant will be prejudiced. The learned counsel also contended that where the Government makes a representation, acting within the scope of its ostensible authority, and if another person acts upon such representation, the Government must be held to be bound by such representation and that any defect in procedure or irregularity can be waived so as to render valid which would otherwise be invalid. The counsel further submitted that allowing the Government to go back upon its promise 238

contained in GOMs No. 201 would virtually amount to allowing it to commit a legal fraud. For a proper appreciation of this contention, it is necessary to keep in mind the distinction between an administrative act and an act done under a statute. If the statute requires that a particular act should be done in a particular manner and if it is found, as we have found hereinbefore, that the act done by the Government is invalid and ineffective for non- compliance with the mandatory requirements of law, it would be rather curious if it is held that notwithstanding such non-compliance, it yet constitutes a 'promise' or a 'representation' for the purpose of invoking the rule of promissory/equitable estoppel. Accepting such a plea would amount to nullifying the mandatory requirements of law besides providing a licence to the Government or other body to act ignoring the binding provisions of law. Such a course would render the mandatory provisions of the enactment meaningless and superfluous. Where the field is occupied by an enactment, the executive has to act in accordance therewith, particularly where the provisions are mandatory in nature. There is no room for any administrative action or for doing the thing ordained by the statute otherwise than in accordance therewith. Where, of course, the matter is not governed by a law made by a competent legislature, the executive can act in its executive capacity since the executive power of the State extends to matters with respect to which the legislature of a State has the power to make laws (Article 162 of the Constitution). The proposition urged by the learned counsel for the appellant falls foul of our constitutional scheme and public interest. It would virtually mean that the rule of promissory estoppel can be pleaded to defeat the provisions of law whereas the said rule, it is well settled, is not available against a statutory provision. The sanctity of law and the sanctity of the mandatory requirement of the law cannot be allowed to be defeated by resort to rules of estoppel. None of the decisions cited by the learned counsel say that where an act is done in violation of a mandatory provision of a statute, such act can still be made a foundation for invoking the rule of promissory/equitable estoppel. Moreover, when the Government acts outside its authority, as in this case, it is difficult to say that it is acting within its ostensible authority."

26. In view of the above, it is not possible to accept the contention that the Statute contained in the 239

Notification dated 4-9-1991 came into effect or became enforceable even in the absence of publication in the Official Gazette. The High Court committed an error in holding that the teachers became entitled to the benefit of the Statute relating to time-bound promotion scheme, when the said Statute made by the Board of Management was assented to by the Chancellor even though it was not published in the gazette. The High Court also committed an error in observing that the non-publication was unreasonable and arbitrary, as it ignored the valid reasons assigned by the Chancellor for withdrawing his assent to the incomplete Statute, in his Order dated 19-3-1996."

(Emphasis supplied)

Further, in the case of UNION OF INDIA v. PARAM INDUSTRIES

LIMITED8, the Apex Court holds as follows:

"1. The respondents herein are engaged in the export and import of various edible oils. They have been importing edible oils in bulks through various ports throughout the country. The respondent had imported RBD Palmolein which had arrived at the port of destination and the same were cleared after payment of import duty of 85% of its value. This import duty was paid pursuant to the notification which was in existence as on that date. The respondent had even removed major quantity of the goods under the aforesaid consignment from the warehouse after payment of the duty in the manner aforesaid. However, when it wanted to remove the balance quantity, the same was denied.

2. Thereafter, a notice was received by the respondent which was issued by the appellant stating that with effect from 3-8-2001 (incidentally this is the date on which the bill of entry was filed and goods were cleared by the respondent as

8 (2016) 16 SCC 692 240

aforesaid), the tariff value in respect of RBD Palmolein had been raised to USD 372 per metric tonne and therefore, the respondent was liable to pay the difference in the tariff which was paid on the basis of earlier notification. The respondent contested the aforesaid demand raised in the show-cause notice by filing reply and contending that the notification which was issued under Section 14(2) of the Customs Act, raising the import duty had not come into effect from 3-8-2001. The respondent filed the writ petitions challenging the action of the appellant in determining the duty.

3. Suffice is to state that in these proceedings, the respondent has ultimately succeeded inasmuch as this plea has been accepted and the Division Bench of the High Court has concluded [Param Industries Ltd. v. Union of India, 2002 SCC OnLine Kar 480 : ILR 2002 KAR 4523] that notification issued under Section 14(2) of the Customs Act cannot be held to have come into force with effect from 3-8-2001. There was some dispute as to whether the notification was published on 3-8-2001 itself or it was published on a later date.

However, from the record, it gets revealed that the notification was sent for publication after the normal office hours i.e. much after 5 p.m. on 3-8-2001. It was almost at the midnight, may be few minutes before 12 in the night. Even if it is to be treated as notification having been published on 3-8-2001 itself i.e. just before the midnight, an issue has arisen as to whether it could be made effective qua the goods which were already cleared during the daytime on the basis of earlier notification. However, it is not necessary to go into this issue at all.

4. What we find is that the High Court has stated that for bringing the notification into force and make it effective, two conditions are mandatory viz. (1) notification should be duly published in the Official Gazette, (2) it should be offered for sale on the date of its issue by the Directorate of Publicity and Public Relations of the Board, New Delhi. In the present case, admittedly, the second condition was not satisfied inasmuch as it was offered for sale only on 6-8-2001, as it was published on 3-8-2001 in late evening hours and 4-8-2001/5-8-2001 were holidays.

241 5. We are in agreement with the aforesaid view taken by the High Court which is in conformity with the law laid down by this Court in Harla v. State of Rajasthan [Harla v. State of Rajasthan, 1951 SCC 936: AIR 1951 SC 467: 1952 Cri LJ 54:

1952 SCR 110] wherein this Court formulated the aforesaid principle in the following manner: (AIR pp. 468-69, para 11)

"11. The principle underlying this question has been judicially considered in England. For example, on a somewhat lower plane, it was held in Johnson v. Sargant & Sons [Johnson v. Sargant & Sons, (1918) 1 KB 101] that an Order of the Food Controller under the Beans, Peas and Pulse (Requisition) Order, 1917, does not become operative until it is made known to the public, and the difference between an Order of that kind and an Act of the British Parliament is stressed. The difference is obvious. Acts of the British Parliament are publicly enacted. The debates are open to the public and the Acts are passed by the accredited representatives of the people who in theory can be trusted to see that their constituents know what has been done. They also receive wide publicity in papers and, now, over the wireless. Not so Royal Proclamations and Orders of a Food Controller and so forth. There must therefore be promulgation and publication in their cases.

The mode of publication can vary; what is a good method in one country may not necessarily be the best in another. But reasonable publication of some sort there must be."

(Emphasis supplied)

In the afore-quoted judgments, the Apex Court clearly holds that,

for a rule in terms of a notification to come into effect, the

requirement to make the statute public is mandatory. To make it

public, publication in the Official Gazette becomes mandatory and

binding. Identical submissions that are made in the case at hand

by the Additional Advocate General were made in the cases before 242

the Apex court as well. The Apex Court has turned it down. This

Court would follow suit.

18. In the light of the law laid down by the Apex Court what

becomes unmistakably clear is, illegality in the execution of bonds

in terms of Amended Rule 11, insofar as it pertains to a period prior

to the notification of the Rules in the Official Gazette i.e., on

22-07-2022. Today the Rules are in place and the students who

would get admitted to Government Colleges or students get

admitted to private colleges under the Government quota cannot

now escape the rigour of compulsory rural service or execution of

bonds in terms of the Rules. It is only for these petitioners the

action is held to be illegal in the teeth of the Rule not being in force

as on the date on which it was sought to be implemented/imposed

upon every student through execution of bonds. Therefore, a

contract that is executed, drawing its source to a Rule that had

never come into force, is by itself a void contract. The submission

that mere non-publication of the rule in the Official Gazette would

not vitiate the notification is unacceptable. Therefore, the bonds

that are executed by the petitioners are held to be contrary to law.

243 For all the aforesaid reasons except the contention qua execution of

bonds, on Issue No.3, every other issue is to be held against the

petitioners.

EPILOGUE:

19. A parting observation in the peculiar facts of the case at

hand, in the considered view of the Court, would not be inapt. The

undisputed fact is, that the petitioners in all these cases are

beneficiaries of allotment of a seat in the Government quota of the

respective private medical colleges or even the Government

colleges. They are making a hue and cry about rural service that

they are mandatorily directed to render, by projecting various

difficulties that the Doctors would face, if they are directed to

undergo mandatory rural service. Mandatory rural service is not

alien to the medical profession in any part of the globe,

nomenclatures change, the concept is the same.

20. Most development countries, like the United States of

America, Canada and Austrialia inter alia, have policies targeted at

International Medical Graduates, requiring them to sign a bond for a 244

specified period, which would vary from 1 years to 5 years, which

would require those medical graduates to work in the allocated

rural areas for the bond period. It is only after completion of such

service, those medical graduates would get licences to practice

medicine in the said country. Few of the other countries like the

Latin American countries, African countries and countries in Asian

continent do have mandatory or compulsory community service like

the one prescribed, which forms the fulcrum of the subject lis. The

name is different. The State has worded it as 'Rural Service'.

21. In the United Kingdom it is called as 'Targeted Enhanced

Recruitment Scheme'. The scheme is open to graduate

professionals and trainees who are committed to work for 3 years in

the areas identified by the Competent Authority. In the United State

of America there are 4 policies which have different names, but all

target at community service where newly trained Doctors are

directed to work in high need areas in exchange for student debt

relief and assist the Health Care Work Force. In Australia, the

Health Insurance Act depicts what is 'Bonded Medical Programme',

apart from 3 other schemes the country has, for retention of health 245

professionals in rural and remote Australia. In Canada,

international medical graduates regardless of citizenship graduated

from medical school, are required to work in such areas identified

by the Competent Authorities. Same goes with countries like South

Africa, France, Germany, China, Thailand and Russia. They are

either by statutes or by policies or by guidelines, nonetheless,

community service/rural service is a prevailing and recognized

norm to provide adequate health care to the remote rural areas.

22. The World Health Organization encourages compulsory

service programmes for recruiting health workers in remote and

rural areas. It has laid down guidelines on health workforce

development recruitment and retention of those work force in rural

and remote areas. The WHO targets increasing access of health

workers to remote and rural areas through improved retention of

health professionals, so that it would be beneficial to healthcare in

the rural areas and would obviate imbalances in such rural areas.

Several recommendations are made by the WHO to all the signatory

nations to encourage such community service/rural service by the

Doctors. According to a study published by the WHO in 2010, 246

compulsory rural/community service programmes for healthcare

professionals including Doctors are bifurcated into 3 different

categories: i) a precondition for State employment programme,

ii) Compulsory services with incentives, iii) Compulsory services

without incentives. These programmes are also regulated by law or

a policy within the respective Ministries of Health. There are

compliance enforcement measures including withholding full

registration until obligations are completed, withholding degree or

salary or imposing hefty fines. All these could be classified in a flow

chart. The flow chart is as follows:

Source: website of the WHO.

247 The table depicts systematic breakdown of 3 different categories

across the globe. The State has now brought in educationally

linked regulation. This is also the one obtaining in most of the

nations. Therefore, the students/medical graduates who are the

beneficiaries of the welfare of the State, in getting a seat under the

Government quota, cannot be seen to escape this obligation of rural

service.

23. As observed by the Apex Court, a healthy body is the

very foundation of all human activities. In a welfare state it is the

obligation of the State to ensure the creation and the sustaining

conditions congenial to good health of all citizens. When the

students get in under a separate Government quota, at grossly

subsidized fee, they cannot, but aid in the programme of the State

to improve public health, more particularly, in the rural tribal and

difficult areas. The object behind the prescription of the mandate of

rural service is ostensibly to provide better health care in rural,

tribal or those difficult areas of the citizens of this country, who

would have no means to reach a doctor. The students should

become part of the public health programme of the State. It is a 248

dream, that a day would come that medical graduates, would

themselves volunteer to render such service, in the rural areas and

it is expected that the dream would shortly come true, so that the

Society would become Egalitarian resulting in an 'Utopian Land'.

24. In the light of the aforesaid discussion and conclusion, I

pass the following:

ORDER

(i) Writ Petitions are allowed in part.

(ii) The corrigendum dated 17-06-2021 stands quashed only insofar as these petitioners are concerned.

(iii) Liberty is reserved to the State Government to bring in any Circular/Corrigendum or even a law in tune with the rule now gazetted.

(iv) The petitioners in all these cases would become entitled to consequential benefits that would flow from the quashment of corrigendum dated 17-06-2021 insofar as it concerns them.

249 (v) All other contentions with regard to the Act and Rules stand rejected.

Pending applications, if any, also stand disposed.

Sd/-

JUDGE

bkp CT:MJ