JUDGMENT & ORDER : 1. By means of this petition, the petitioner who has admittedly appeared in the NEET for admission in the PG Course in Modern Medicine as the in-service candidate, has urged this court for allotting him 30% additional marks towards incentive for serving in the remote/difficult areas in addition to marks secured by him in the NEET. Further, the petitioner has challenged the provision for upper age limit contained in the memorandum under No.F.7(10)-DME/ET/2012/2950-62 dated 30.10.2014, Annexure-R/1 to the reply filed by the respondents, and the memorandum under No. No.F.3(472)-HFW/2015 dated 17.12.2015, Annexure-R/3 to the reply filed by the respondents. By these memoranda, Annexures-R/1 and R/3 to the reply filed by the respondents, the Government has set up restriction of age for the sponsored/open category candidates in the following manner: “Upper age limit shall be 45(forty five) years.” However, in the memorandum dated 17.12.2015, 5(five) years relaxation from the said upper age limit for SC and ST candidates has been provided. 2. The facts are mostly admitted. Against the ID No.CD1680360 the petitioner appeared in the National Eligibility-cum-Entrance Test [NEET in short] for MD/MS/Post Graduate Diploma Courses [NEET-PG 2017]. From the scorecard, Annexure-2 to the writ petition, it appears that the petitioner has been declared qualified in the said examination. Thus, the petitioner would be considered against the seats available in various courses in terms of the merit. On 29.09.2016, the petitioner urged the Directorate of Health Services for issuing no objection certificate [NOC] or the sponsorship certificate so that he can derive the benefit provided under Rule 9(2) of the Medical Council of India Post Graduate Medical Education Regulations, 2000, in short MCI Regulations, 2000 for the in-service candidates. The petitioner was given no-objection for appearing in the NEET-PG 2017 by the memorandum dated 18.11.2016, Annexure-4 to the writ petition, issued by the Director of Health Services, Government of Tripura. The petitioner was given no-objection for appearing in the NEET-PG 2017 by the memorandum dated 18.11.2016, Annexure-4 to the writ petition, issued by the Director of Health Services, Government of Tripura. From the memorandum dated 14.12.2011, Annexure-5 to the writ petition, issued by the Director of Health Services, Government of Tripura it appears that the petitioner had requisite the service in remote and/or difficult areas as defined by the State Government and hence, he was entitled to the benefit as provided below the Regulation 9(2) of the MCI Regulations, 2000 as amended by the notification dated 17.11.2009 adding after Regulation 9(2)(d) as follows: “Further provided that in determining the merit in the entrance test for Post Graduate admission weight age in the marks may be given as an incentive @10% of the marks obtained for each year in-service in remote or difficult areas upto the marks of 30% of the marks obtained.” 3. There is no dispute that the said clause was further amended by the notification dated 15.02.2012 and has been substituted by the following clause: “Provided that in determining the merit of candidates who are in-service of government/public authority, weight age in the marks may be given by the Government/Competent Authority as an incentive at the rate of 10% of the marks obtained for each year of service in remote and/or difficult areas upto the maximum of 30% of the marks obtained in National Eligibility-cum-Entrance Test. The remote and difficult areas shall be as defined by State Government/Competent authority from time to time.” In the said notification dated 15.02.2012, it has been further provided that 50% of the seats in the Post Graduate Diploma courses shall be reserved for the Medical Officers in the government service, who have served for at least 3(three) years in remote and/or difficult areas. After requiring the PG Diploma, the Medical Officers shall serve for 2(two) years in remote and/or difficult areas as defined by the State Government/competent authority from time to time. So far the eligibility of the petitioner of coming under the said 50% quota for the medical officers in the government service is concerned, there is no controversy. But the respondents have clearly submitted that in view of the memoranda dated 30.10.2014 and 17.12.2015, Annexures-R/1 & R/3 to the reply, the petitioner cannot come under the said category. So far the eligibility of the petitioner of coming under the said 50% quota for the medical officers in the government service is concerned, there is no controversy. But the respondents have clearly submitted that in view of the memoranda dated 30.10.2014 and 17.12.2015, Annexures-R/1 & R/3 to the reply, the petitioner cannot come under the said category. In Para-11 of their reply, the respondents have averred as under: “Accordingly, NOC was issued in favour of the petitioner, but on scrutiny of records it appears that petitioner has crossed the age limit of 45 years and as per guidelines issued by the Government of Tripura vide Memorandum dated 30.10.2014 one cannot appear and get a set of PG Medical Course as a sponsor candidate who has crossed 45 years and as such the NOC was issued to the petitioner earlier has been cancelled by the vide Memorandum dated 25.11.2016 which was received by the petitioner on 14.12.2016” 4. As referred in the reply, by the memorandum No.F.13(1103)-HFW/2008 dated 25.11.2016, Annexure-R/2 to the reply, the petitioner’s no objection certificate for NEET-PG issued by the memorandum dated 18.11.2014, Annexure-4 to the writ petition, has been cancelled and according to the respondents, since the petitioner had crossed the upper age limit of 45 years he was not eligible to be sponsored for the said course. In the writ petition, the said memorandum dated 25.11.2016, Annexure-R/2 to the reply, has not been challenged. But the memoranda dated 30.10.2014 and 17.12.2015, Annexures-R/1 & R/3 to the reply, are challenged by way of amendment of the writ petition. No doubt, if those memoranda are struck down the memorandum dated 25.11.2016, Annexure-R/2 to the reply, would be of no consequence. There is no controversy that the petitioner has crossed 45 years of age and according to the impugned guidelines as contained in the memoranda dated 30.10.2014 and 17.12.2015, Annexures-R/1 & R/3 to the reply, the petitioner is not eligible to be considered under 50% quota for the in-service candidates. The solitary question that whether the provision for upper age limit of 45 years has been prescribed with competence or not, falls for consideration in this writ petition. 5 Mr. The solitary question that whether the provision for upper age limit of 45 years has been prescribed with competence or not, falls for consideration in this writ petition. 5 Mr. A.K. Bhowmik, learned senior counsel has founded his submission appearing for the petitioner by stating that the State does not have any competence to set up any restriction in the matter which falls within the exclusive domain of the Medical Council of India and the Central Government. According to Mr. Bhowmik, learned senior counsel, the MCI Regulations, 2000 has been framed in exercise of the power conferred by Section 33 read with Section 20 of the Indian Medical Council Act, 1955. As such, the State does not have any authority to restrict or impair, even by implication, any of its provisions or by any manner either by framing rules or by framing guidelines in exercise of its power under Article 162 or proviso to Article 309 of the Constitution of India. According to Mr. Bhowmik, learned senior counsel, even the power under Article 162 of the Constitution is subject to the provisions of the Constitution and the executive power of a State shall extend to the matters with respect to which the legislature of the State has power to make laws. Thereafter, Mr. Bhowmik, learned senior counsel has quite stoutly submitted that the matter of the medical admission falls under the Entry 66 of the List-I [the Union List] of the Seventh Schedule [under Article 246 of the Constitution] and hence, the provision/restriction of upper age limit as set up by the State is without the legislative competence or any competence whatsoever. Hence, the impugned memoranda dated 30.10.2014 and 17.12.2015, Annexures-R/1 & R/3 to the reply, are ultravires. In support of his contention, Mr. Bhowmik, learned senior counsel has referred a decision of the apex court in State of Uttar Pradesh and Others vs. Dinesh Singh Chauhan, reported in (2016) 9 SCC 749 , where the apex court had occasion to observe as under: “22. Reverting to Regulation 9 of the Post Graduate Medical Education Regulations, 2000, which have been framed by the Medical Council of India in exercise of power conferred by Section 33 read with Section 20 of the Indian Medical Council of India Act, 1956, it is noticed that the same has undergone amendment from time to time. Reverting to Regulation 9 of the Post Graduate Medical Education Regulations, 2000, which have been framed by the Medical Council of India in exercise of power conferred by Section 33 read with Section 20 of the Indian Medical Council of India Act, 1956, it is noticed that the same has undergone amendment from time to time. The decisions pressed into service have considered the stipulations as applicable at the relevant time. The recent decision in the case of Sudhir N. vs. State of Kerala : (2015) 6 SCC 685 , also dealt with Regulation applicable to admission process commenced in the year 2009-2010. We are, however, concerned with the admission process for the subsequent academic years and covered by the Regulations as in force. Regulation 9, as amended and lastly notified and made applicable from the Academic Year 2013-2014 vide Notification No.MCI-18(1)/2010-Mad/62052 dated 15.02.2012, reads thus: ‘9. Procedure for selection of candidate for Postgraduate courses shall be as follows: (I) There shall be a single eligibility cum entrance examination namely „National Eligibility-cum-Entrance Test for admission to Postgraduate Medical Courses? in each academic year. The superintendence, direction and control of National Eligibility-cum-Entrance Test shall vest with National Board of Examinations under overall supervision of the Ministry of Health & Family Welfare, Government of India. (II) 3% seats of the annual sanctioned intake capacity shall be filled up by candidates with locomotory disability of lower limbs between 50% to 70%: Provided that in case any seat in this 3% quota remains unfilled on account of unavailability of candidates with locomotory disability of lower limbs between 50% to 70% then any such unfilled seat in this 3% quota shall be filled up by persons with locomotory disability of lower limbs between 40% to 50% before they are included in the annual sanctioned seats for General Category candidates. Provide further that this entire exercise shall be completed by each medical college/ institution as per the statutory time schedule for admissions. (III) In order to be eligible for admission to any postgraduate course in a particular academic year, it shall be necessary for a candidate to obtain minimum of marks at 50th percentile in „National Eligibility-cum- Entrance Test for Postgraduate courses? held for the said academic year. However, in respect of candidates belonging to Scheduled Castes, Scheduled Tribes, Other Backward Classes, the minimum marks shall be at 40th percentile. held for the said academic year. However, in respect of candidates belonging to Scheduled Castes, Scheduled Tribes, Other Backward Classes, the minimum marks shall be at 40th percentile. In respect of candidates as provided in clause 9(II) above with locomotory disability of lower limbs, the minimum marks shall be at 45th percentile. The percentile shall be determined on the basis of highest marks secured in the All-India common merit list in „National Eligibility-cum-Entrance Test? for Postgraduate courses: Provided when sufficient number of candidates in the respective categories fail to secure minimum marks as prescribed in National Eligibility-cum- Entrance Test held for any academic year for admission to Post Graduate Courses, the Central Government in consultation with Medical Council of India may at its discretion lower the minimum marks required for admission to Post Graduate Course for candidates belonging to respective categories and marks so lowered by the Central Government shall be applicable for the said academic year only. (IV) The reservation of seats in medical colleges/institutions for respective categories shall be as per applicable laws prevailing in States/Union Territories. An all India merit list as well as State-wise merit list of the eligible candidate shall be prepared on the basis of the marks obtained in National Eligibility-cum-Entrance Test and candidates shall be admitted to Post-graduate courses from the said merit lists only: Provided that in determining the merit of candidates who are in-service of Government/public authority, weight age in the marks may be given by the Government/Competent Authority as an incentive at the rate of 10% of the marks obtained for each year of service in remote and/or difficult areas upto the maximum of 30% of the marks obtained in National Eligibility- cum Entrance Test, the remote and difficult areas shall be as defined by State Government/Competent authority from time to time. (V) No candidate who has failed to obtain the minimum eligibility marks as prescribed in sub-clause (II) shall be admitted to any Postgraduate courses in the said academic year. (VI) In non-Governmental medical colleges/ institutions, 50% (Fifty Per cent) of the total seats shall be filled by State Government or the Authority appointed by them, and the remaining 50% (Fifty Per Cent) of the seats shall be filled by the medical colleges/institutions concerned on the basis of the merit list prepared as per the marks obtained in National Eligibility-cum/Entrance Test. (VII) 50% of the seats in Post Graduate Diploma Courses shall be reserved for Medical Officers in the Government service, who have served for at least three years in remote and/or difficult areas. After acquiring the PG Diploma, the Medical Officers shall serve for two more years in remote and/or difficult areas as defined by State Government/ competent authority from time to time. (VIII) The Universities and other authorities concerned shall organize admission process in such a way that teaching in postgraduate courses starts by 2nd May and by 1st August for super specialty courses each year. For this purpose, they shall follow the time schedule indicated in Appendix-III. (IX) There shall be no admission of students in respect of any academic session beyond 31st May for postgraduate courses and 30th September for super speciality courses under any circumstances. The Universities shall not register any student admitted beyond the said date. (x) The Medical Council of India may direct, that any student identified as having obtained admission after the last date for closure of admission be discharged from the course of study, or any medical qualification granted to such a student shall not be a recognized qualification for the purpose of the Indian Medical Council Act, 1956. The institution which grants admission to any student after the last date specified for the same shall also be liable to face such action as may be prescribed by MCI including surrender of seats equivalent to the extent of such admission made from its sanctioned intake capacity for the succeeding academic year. 23. The structure of the provision, as in force, may be somewhat different. Nevertheless, the legal principle stated in the earlier decisions of this Court on the question of justness of reservation and/or to provide separate channel for the in-service Medical Officers and/or grant weight age of incentive marks to candidates having served in remote and difficult areas may be of some relevance. 24. By now, it is well established that Regulation 9 is a self-contained Code regarding the procedure to be followed for admissions to medical courses. 24. By now, it is well established that Regulation 9 is a self-contained Code regarding the procedure to be followed for admissions to medical courses. It is also well established that the State has no authority to enact any law much less by executive instructions that may undermine the procedure for admission to Post Graduate Medical Courses enunciated by the Central Legislation and Regulations framed there under, being a subject falling within the Entry 66 of List I to the Seventh Schedule of the Constitution (See: Preeti Srivastava vs. State of M.P.: (1999) 7 SCC 120 ). The procedure for selection of candidates for the Post Graduate Degree Courses is one such area on which the Central Legislation and Regulations must prevail. 25. Thus, we must first ascertain whether Regulation 9, as applicable to the case on hand, envisages reservation of seats for in-service Medical Officers generally for admission to Post Graduate „Degree? Courses. Regulation 9 is a composite provision prescribing procedure for selection of candidates - both for Post Graduate „Degree? as well as Post Graduate „Diploma? Courses. 25.1. Clause (I) of Regulation 9 mandates that there shall be a single National Eligibility-cum-Entrance Test (hereinafter referred to as NEET) to be conducted by the designated Authority. 25.2. Clause (II) provides for three per cent seats of the annual sanctioned intake capacity to be earmarked for candidates with locomotory disability of lower limbs. We are not concerned with this provision. 25.3. Clause (III) provides for eligibility for admission to any Post Graduate Course in a particular academic year. 25.4. Clause (IV) is the relevant provision. It provides for reservation of seats in medical colleges/institutions for reserved categories as per applicable laws prevailing in States/Union Territories. The reservation referred to in the opening part of this clause is, obviously, with reference to reservation as per the constitutional scheme (for Scheduled Caste, Scheduled Tribe or Other Backward Class Candidates); and not for the in-service candidates or Medical Officers in-service. It further stipulates that All India merit list as well as State wise merit list of the eligible candidates shall be prepared on the basis of the marks obtained in the NEET and the admission to Post Graduate Courses in the State concerned shall be as per the merit list only. It further stipulates that All India merit list as well as State wise merit list of the eligible candidates shall be prepared on the basis of the marks obtained in the NEET and the admission to Post Graduate Courses in the State concerned shall be as per the merit list only. Thus, it is a provision mandating admission of candidates strictly as per the merit list of eligible candidates for the respective medical courses in the State. This provision, however, contains a proviso. It predicates that in determining the merit of candidates who are in-service of Government or a public Authority, weight age in the marks may be given by the Government/Competent Authority as an incentive at the rate of 10% of the marks obtained for each year of service in specified remote or difficult areas of the State upto the maximum of 30% of the marks obtained in NEET. This provision even if read liberally does not provide for reservation for in-service candidates, but only of giving a weight age in the form of incentive marks as specified to the class of in-service candidates (who have served in notified remote and difficult areas in the State). 26. From the plain language of this proviso, it is amply clear that it does not envisage reservation for in-service candidates in respect of Post Graduate „Degree? Courses with which we are presently concerned. This proviso postulates giving weight age of marks to „specified in-service candidates? who have worked in notified remote and/or difficult areas in the State – both for Post Graduate „Degree? Courses as also for Post Graduate „Diploma? Courses. Further, the weight age of marks so allotted is required to be reckoned while preparing the merit list of candidates. 27. Thus understood, the Central enactment and the Regulations framed there under do not provide for reservation for in-service candidates in Post Graduate „Degree? Courses. As there is no express provision prohibiting reservation to in-service candidates in respect of admission to Post Graduate „Degree? Courses, it was contended that providing for such reservation by the State Government is not impermissible in law. Further, there are precedents of this Court to suggest that such arrangement is permissible as a separate channel of admission for in-service candidates. This argument does not commend to us. Courses, it was contended that providing for such reservation by the State Government is not impermissible in law. Further, there are precedents of this Court to suggest that such arrangement is permissible as a separate channel of admission for in-service candidates. This argument does not commend to us. In the first place, the decisions pressed into service have considered the provisions regarding admission process governed by the Regulations in force at the relevant time. The admission process in the present case is governed by the Regulations which have come into force from Academic Year 2013-2014. This Regulation is a self- contained Code. There is nothing in this Regulation to even remotely indicate that a separate channel for admission to in-service candidates must be provided, at least in respect of Post Graduate „Degree? Courses. In contradistinction, however, 50% seats are earmarked for the Post Graduate „Diploma? Courses for in-service candidates, as is discernible from Clause (VII). If the Regulation intended a similar separate channel for in service candidates even in respect of Post Graduate „Degree? Courses, that position would have been made clear in Regulation 9 itself. In absence thereof, it must be presumed that a separate channel for in-service candidates is not permissible for admission to Post Graduate „Degree? Courses. Thus, the State Government, in law, had no authority to issue a Government Order such as dated 28.02.2014, to provide to the contrary. Hence, the High Court was fully justified in setting aside the said Government Order being contrary to the mandate of Regulation 9 of the 2000 Regulations, as applicable from Academic Year 2013-14.” [Emphasis added] 6. Thus, Mr. Bhowmik, learned senior counsel has contended that the impugned memoranda have been issued encroaching the Entry 66 and hence, those are liable to be struck down and as corollary thereof, the petitioner be sponsored for his admission in the Post Graduate Course in terms of his merit under 50% quota for the in-service candidate. 7. From the other side, Mr. S. Chakraborty, learned Addl. G.A. appearing for the respondents has submitted that there is no substance in the ground as projected for challenging the competence of the State in adopting his guidelines in respect of the upper age limit so far its relate to sponsoring a in-service candidate for admission in the Post Graduate courses in the State and outside the State. G.A. appearing for the respondents has submitted that there is no substance in the ground as projected for challenging the competence of the State in adopting his guidelines in respect of the upper age limit so far its relate to sponsoring a in-service candidate for admission in the Post Graduate courses in the State and outside the State. This does not relate to the subject under Entry 66 as referred by Mr. Bhowmik, learned senior counsel appearing for the petitioner. According to Mr. Chakraborty, learned Addl. G.A. State is not wholly divested of the power inasmuch as the said policy decision of the State is neither in conflict with the MCI Regulations, 2000 nor repugnant in view of Entry 66 of the Seventh Schedule of the Constitution. 8. For appreciating the rival contentions, structured as above, it would be apposite to reproduce the provisions of Entry 66 of the Seventh Schedule as Mr. Bhowmik, learned senior counsel has clearly made a statement that the petitioner is not pressing any other ground of foundation to challenge the impugned memoranda. Entry 66 of the Seventh Schedule reads as under: “66. Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions.” 9. The setting up of restriction or upper age limit for purpose of sponsoring cannot be held as the subject matter of co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions. It is a policy of the State Government of sponsoring in-service candidates. The State Government has taken a policy decision that they shall not sponsor any candidate who has crossed 45 years of age despite he has 3(three) years of service in the remote and difficult areas. Since the ground of challenge is confined to the competence of the State in regard thereof, this court would not widen its consideration beyond the said ground. It may be noted that a Constitutional Bench of the apex court in Dr. Preeti Srivastava and another vs. State of M.P. and others, reported in (1999) 7 SCC 120 , has clearly observed as under: “35. The legislative competence of Parliament and the legislatures of the States to make laws under Article 246 is regulated by the VIIth Schedule to the Constitution. Preeti Srivastava and another vs. State of M.P. and others, reported in (1999) 7 SCC 120 , has clearly observed as under: “35. The legislative competence of Parliament and the legislatures of the States to make laws under Article 246 is regulated by the VIIth Schedule to the Constitution. In the VIIth Schedule as originally in force, Entry 11 of List II gave to the State an exclusive power to legislate on „Education including universities subject to the provisions of Entries 63, 64, 65 and 66 of List I and Entry 25 of List III.? Entry 11 of List II was deleted and Entry 25 of List III was amended with effect from 3-1-1976 as a result of the Constitution 42nd Amendment Act of 1976. The present Entry 25 in the Concurrent List is as follows : ?25. Education, including technical education, medical education and universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I : Vocational and technical training of labour.” Entry 25 is subject, inter alia, to Entry 66 of List I. Entry 66 of List I is as follows : ?66. Coordination and determination of standards in institutions for higher education or research and scientific and technical institutions.” Both the Union as well as the States have the power to legislate on education including medical education, subject, inter alia, to Entry 66 of List I which deals with laying down standards in institutions for higher education or research and scientific and technical institutions as also coordination of such standards. A State has, therefore, the right to control education including medical education so long as the field is not occupied by any Union Legislation. Secondly, the State cannot, while controlling education in the State, impinge on standards in institutions for higher education. Because this is exclusively within the purview of the Union Government. Therefore, while prescribing the criteria for admission to the institutions for higher education including higher medical education, the State cannot adversely affect the standards laid down by the Union of India under Entry 66 of List I. Secondly, while considering the cases on the subject it is also necessary to remember that from 1977 education including, inter alia, medical and university education, is now in the Concurrent List so that the Union can legislate on admission criteria also. If it does so, the State will not be able to legislate in this field, except as provided in Article 254.” [Emphasis added] 10. As this court has already observed that the setting up of upper age limit for purpose of sponsoring is not a subject matter of Article 66 and since this field is not occupied by any Union legislation, it cannot be held that the setting up of the restriction in respect of the age as a matter of policy as notified by the impugned memoranda is ultravires for being beyond the competence of the State. Hence, this writ petition being devoid of merit is dismissed. However, if the writ petitioner is entitled to any benefit in terms of Dinesh Singh Chauhan (supra), he may approach the competent authority. This order shall not create any bar for the said purpose. There shall be no order as to costs.