PASAYAT, J. ( 1 ) THOSE two writ applications stated to have been filed in public interest contain unusual prayers. Normally reservation is sought for in respect of those who are deficient and cannot compete on merit. In these cases prayer in instant writ petition filed in public interest is to give reservation for merit. ( 2 ) A brief reference to the factual aspects would suffice. O. J. C. No. 3867 of 1997 has been filed by a learned counsel of this Court praying for a direction to the opposite parties to give weightage to the best scholars of the Universities, while making selections for Post Graduate studies in the medical colleges of the State. Petitioner in the other writ application, i. e. , O. J. C. No. 12,458 of 1997 has more or less come with similar prayer. According to her, at least 5% reservation for the toppers of the State should be made in respect of subjects of their choice in the matter of admission into Post Graduate course and higher specialities for medical training. Prayer has been made for amending the prescribed rules. Reference has been made to factual aspects prevailing for 1997-98 Session. ( 3 ) A Committee was constituted for the purpose of selection in the year 1997 consisting of the D. M. S. T. , Orissa and the Principals of three Medical Colleges of the State. Out of total number of 188 seats, 91 seats were to be filled up directly which consisted on 72 seats of general category, 18 seats, i. e, 7 + 11, for S. C. and S. T. candidates respectively, and one for Physically Handicapped person. For inservice candidates the total number was 93, and in respect of general category the number of seats available was 74, whereas in respect of other categories the numbers were same. For higher specialities 4 seats were there, i. e. , two seats each for D. M. (Cardiology) and M. Ch. (Neurosurgery ). ( 4 ) PETITIONERS main grievance is that merit is not having any role for recognition and there being always an element of chance in the examination which involves objective type of questions, more often than not the best students are not selected. (Neurosurgery ). ( 4 ) PETITIONERS main grievance is that merit is not having any role for recognition and there being always an element of chance in the examination which involves objective type of questions, more often than not the best students are not selected. ( 5 ) A question is raised that if reservation can be made for those who are deficient, why it cannot be done in the case of meritorious students, who by dint of their scholarship have become toppers. ( 6 ) IN the counter affidavit filed it has been stated that the recommendations of Medical Council of India on Post-Graduate Medical Education lays down the guidelines for selection. It reads as follows:"students for post-graduate training shall be selected strictly on the basis of their academic merit. For determining academic merit the University/institution may adopt any one of the following procedure both for degree and diploma course. (i) On the basis of merit as determined by a competitive test conducted by the University/group of Universities. (ii) On the basis of merit as determined by a centralised competitive test is held at the National Level. (iii) On the basis of their performance at the M. B. B. S. examination provided they all come from the one University. (iv) Combination of (i) and (iii)Note - If there is more than one University, there shall be combined test by the Universities. "it is, therefore, stated that the performance is the M. B. B. S. examination cannot be the sole criteria for selection into P. G. course. It is stated that 15 students stood first in the subjects of general category, Orthopaedic surgery, E. N. T. General Medicine and Paediatrics in the three Universities of the State. As against this, there are only four seats available for higher specialities. To bring out a check balance against the less meritorious students coming into the field of selection, a common test has been prescribed. The element of chance or Iuck is around 6. 25% and therefore, the students with less merit and getting seat by luck is without any foundation. ( 7 ) THERE can be no dispute over the general proposition that merit should receive recognition, and be the determinative factor. In the field of medical science competent doctors are necessary. Doctors play a vital role in the preservation of health of citizens. ( 7 ) THERE can be no dispute over the general proposition that merit should receive recognition, and be the determinative factor. In the field of medical science competent doctors are necessary. Doctors play a vital role in the preservation of health of citizens. So there is desirability of laying stress on merit while selecting candidates for medical studies, more particularly in respect of Post Graduate Studies. A patient will not feel safe in the hands of an incompetent doctor. In the lighter vein it is said that if a doctor fails, a person goes six feet below the earth, and if an advocate fails a person goes six feet above the earth. The falling standards in the field of medical education have been highlighted. It is stated that inequipped doctors are being produced by the medical colleges. Without any definite material in that regard, we are not inclined to express any opinion. However, desirability of having competent and equipped doctors as highlighted above cannot be lost sight of. The question is whether we can give a direction for reservation of any seat. Same falls within the domain of decision making authorities. It is accepted that the Medical Council of India is the appropriate authority. ( 8 ) IN the case of Dr. (Mrs) Mamata Mohanty v. State of Orissa, (O. J. C. No. 8371 of 1997 disposed of on 19-1-1998), we had occasion to deal with the role of Medical Council of India (in short, 'nci') relating to Post Graduate Medical Education. In that case, the basic question which was considered was whether the modilities for selection can be at variance with the norms fixed by the MCI. ( 9 ) THE basic question is whether the modalities for selection can be at variance with the norms fixed by the NCI. It is accepted by the learned counsel for State that there is no scope for varying the norms prescribed by the NCI relating to P. G. medical education. In fact in paragraph 3 of the counter affidavit filed by opp. Party No. 7. reference has been made to paragraph IV-A of the recommendation of the NCI on admission to P. G. Medical Education. The accepted position being that the Guidelines of the NCI hold the field, and are binding. Paragraph IV-A of the recommendation, which is relevant to the facts of this case, need to be extracted. Party No. 7. reference has been made to paragraph IV-A of the recommendation of the NCI on admission to P. G. Medical Education. The accepted position being that the Guidelines of the NCI hold the field, and are binding. Paragraph IV-A of the recommendation, which is relevant to the facts of this case, need to be extracted. Same reads as follows:"iv. Selection of students and period of training A. Selection of post-graduate studentsstudents for post-graduate training shall be selected strictly on the basis of their academic merit For determining the academic merit, the University/institution may adopt any one of the following procedure both for degree and diploma courses. (i) On the basis of merit as determined by a competitive test conduct by the University/group of Universities. (ii) the basis of merit as determined by a centralised competitive test held at the National Level. (iii) On the basis of their performance at the M. B. B. S. examinations provided they all come from the one University. (iv) Combination of (i) and (iii)NOTE : If there is more than one University, there shall be combined test by three universities. No weightage shall be given for admission to Degree courses for holding a Diploma, or any other experience. There should be no necessity for the diploma being pre-requisite qualification for admission to post-graduate courses. There shall be no reservation for admission to post-graduate medical degree/diploma course under any category. " ( 10 ) IN, State of N. P. v. Kumari Nivedita Jain, (1982) 1 SCR 759 : ( AIR 1981 SC 2045 ) 19% of the seats for various categories of medical courses in Madhya Pradesh had been reserved for Scheduled Castes and Scheduled Tribes candidates which means out of 720 available 108 were reserved for Scheduled Castes and another 188 seats were reserved for Scheduled Tribes. When the result of Pre-Medical Examinations was published only 19 in the category of Scheduled Castes and 2 seats in the category of Scheduled Tribes could be filled because the other candidates could not acquire the qualifying marks laid down under Rule 10. 90 seats remained vacant in the reserved category for the Scheduled Castes. Likewise, 106 seats remained vacant in the category of seats reserved for the Scheduled Tribes. Thereafter, the Government relaxed the requirement of qualifying marks by 7%. 90 seats remained vacant in the reserved category for the Scheduled Castes. Likewise, 106 seats remained vacant in the category of seats reserved for the Scheduled Tribes. Thereafter, the Government relaxed the requirement of qualifying marks by 7%. As a result of this seven more candidates in the category of Scheduled Castes and one more in the category of Scheduled Tribes got admitted. Faced with the situation that even after relaxation a large number of seats reserved for Scheduled Castes and Scheduled Tribes remained vacant, the State Government passed an order on 9th September, 1980 for completely relaxing the condition relating to the minimum qualifying marks for those two categories. The Government order was as under:"the Government has taken a decision that the candidates belonging to the Scheduled Castes and Scheduled Tribes be admitted to the Medical Colleges in the seats reserved for them in accordance with the merit to be determined on the basis of the marks obtained by them in the Pre-Medical Examination and that for this purpose, the condition relating to the obtaining of minimum qualifying marks be removed. "the Madhya Pradesh High Court held that the order violated Regulations of the Central Medical Council. The executive power of the State under Article 162 could not be exercised so as to override the statutory provisions, especially when the said provision was in a field occupied by the Union List. It was observed that the executive power could be used to supplement a law but not to supplant it. The High Court observed that the total relaxation of minimum marks for the candidates belonging to these reserved categories could not be supported under Article 15 (4) being violative of the Regulations framed by the Medical Council. The Apex Court, on appeal after referring to the provisions of the Indian Medical Council Act reversed the decision of the High Court and held at Page 2056; of AIR:"regulation I prescribes the eligibility of a candidate for admission to medical courses. For maintaining proper standards in medical colleges and institutions it comes within the competance of council to prescribe the necessary qualification of the candidates who may seek admission into the Medical Colleges. . . For maintaining proper standards in medical colleges and institutions it comes within the competance of council to prescribe the necessary qualification of the candidates who may seek admission into the Medical Colleges. . . On the other hand, the language in Regulation II which relates to selection of candidates clearly goes to indicate that the Council itself appears to have been aware of the limitation on its powers to frame any such regulation regarding the procedure or process of selection of candidates for admission to the medical course out of the candidates qualified or eligible to seek such admission. . . . . . The Council itself appears to have apprehended that what is contained in Regulation II is merely in the nature of a recommendation and this is evidance from the language used in Regulation II particularly when the same is contrasted with the language used by the Council in Regulation I. Regulation II begins with the words 'selection of students in a medical college should be based solely on merit. ' We are of the opinion that the use of words 'should be' in Regulation II is deliberate and is intended to indicate the intention of the council that it is only in the nature of a recommendation. "it was held that the authority of the Council extended to the sphere of maintaining proper medical standards in the medical college or institutions necessary for obtaining recognised medical qualifications. It was open to the Council to lay down the educational qualifications required of a student for getting admission into a medical college. In other words, the eligibility of a candidate who may seek to get admission into a medical college for obtaining recognised medical qualifications may be prescribed by the Council. But how the selection was to be made out of the eligible candidates for admission into the medical college was a matter which had necessarily to depend on circumstances and conditions in a particular State. It was further held-"though the question of the eligibility for admission into the medical college may come within the power and jurisdiction of the Council, the question of selection of candidates out of the candidates eligible to undergo the medical course does not appear to come within the purview of the Council. It was further held-"though the question of the eligibility for admission into the medical college may come within the power and jurisdiction of the Council, the question of selection of candidates out of the candidates eligible to undergo the medical course does not appear to come within the purview of the Council. The process of selection of candidates for admission to a medical college out of the candidates eligible for admission for filling up the limited vacancies had no real bearing on the question of eligibility or qualification for admission or on the standards of medical education. " In, Ajai Kumar Singh v. State of Bihar, (1994) 4 SCC 401 : (1994 AIR SCW 2515), it was held, after referring to the case of Kumari Nivedita Jain supra that the State will regulate the admission policy, and at the same time adhere to the standards determined by MCI. These aspects were highlighted by us in Dr. (Mrs.) Mamata Mohanty's case (supra ). ( 11 ) THE MCI has a vital role to play in the matter of fixation of norms for directing maintenance of high standard of medical education. While fixing the norms, the MCI is required to decide as to how best, standard of medical education can be maintained. The question of reservation if any vis-a-vis the need for recognition of merit has to be kept in view. It is for the MCI to determine the manner in which merit can get recognition, undisputed position being that merit is the touchstone for selection. No system can be ever said to be fool-proof for the purpose of selecting best available talents. There is bound to be some element of chance. It is for the authority fixing the norms to decide how the element of chance can be eliminated or reduced to a negligible limit. What would be such limit is hard to define and would depend on facts of each case. ( 12 ) LEARNED counsel for petitioner submitted that 6. 25 (sic) marks when considered in the background of 1200 aggregate marks come to about 75 marks. Even one or two marks stand between success and failure. The anxiety shown by the petitioners for the purpose of recognition of merit cannot be brushed aside lightly. ( 12 ) LEARNED counsel for petitioner submitted that 6. 25 (sic) marks when considered in the background of 1200 aggregate marks come to about 75 marks. Even one or two marks stand between success and failure. The anxiety shown by the petitioners for the purpose of recognition of merit cannot be brushed aside lightly. We, therefore, direct the State Government to send its suggestions to the MCI, considering statements in the writ application, that the latter can examine the desirability of accepting the suggestions, by taking into consideration all relevant aspects. The State Government would do well to send the suggestion to the MCI within two months so that decision can be taken by the MCI expeditiously. The writ applications are accordingly disposed of. No costs. ( 13 ) S. C. DATTA, J. :- I agree. Order accordingly.