Case BriefsSupreme Court

Supreme Court: A Division Bench of L. Nageswara Rao and Aniruddha Bose, JJ., quashed the notification dated 17-8-2016 issued by State Government of Haryana, which specified economic criterion as the sole basis of identification of ‘creamy layer’ (socially advanced sections) among backward classes for excluding them from the purview of benefit of reservation in State services and admission to educational institutions. The Supreme Court reiterated that the basis of exclusion of ‘creamy layer’ cannot be merely economic.

Factual Matrix

Scrutinising reservation in backward classes as recommended by the Mandal Commission, the Supreme Court in Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 had directed State Governments to identify ‘creamy layer’ amongst the backward classes and exclude them from the purview of reservation.

Haryana Backward Classes (Reservation in Services and Admission in Educational Institutions) Act, 2016 was enacted to provide for reservation in services and admission in educational institutions to persons belonging to backward classes in the State of Haryana. Section 5 of this Act provided that ‘creamy layer’ has to be excluded from purview of such reservation. Section 5(2) further postulate that the State Government is to specify criteria for identification and exclusion of ‘creamy layer’ after taking into consideration social, economic and such other factors as deemed appropriate.

2016 Notification

In exercise of powers under 2016 Act, the State Government issued notification dated 17-8-2016 specifying criteria for exclusion of ‘creamy layer’ within backward classes, according to which, sections of backward classes earning above Rs 6 lakh per annum shall be considered as ‘creamy layer’. There was further sub-classification as per which first preference in reservation was to be given to those sections earning upto Rs 3 lakh per annum, and after that to those earning more than 3 lakh but less than 6 lakh per annum.

2018 Notification

The 2016 Notification was challenged by MBBS aspirants before the Punjab and Haryana High Court, which challenge was upheld and the 2016 Notification was set aside. The State of Haryana questioned the correctness of High Court’s judgment before the Supreme Court. During pendency of the appeal, Haryana Government issued another notification dated 28-8-2018 whereby criteria for computing annual income for purposes of the 2016 Notification was fixed as Gross Annual Income which shall include income from all sources.

Students who qualified NEET-2018 again assailed validity of both notifications before the High Court. However, this time the High Court upheld both the notifications. The matter reached before the Supreme Court. The appeals were heard together with writ petition filed for quashing both the notifications.

Analysis and Observations

The Supreme Court noted that Section 5(2) of the 2016 Act clearly provides that social, economic and other factors have to be taken into account for the purpose of determining and excluding ‘creamy layer’ within a backward class.

The Court referred to the earlier notification dated 7-6-1995 issued by the Haryana Government, which was in tune with the judgment of the Supreme Court in Indra Sawhney, 1992 Supp (3) SCC 217.  That notification excluded certain persons who held constitutional posts and those who were in employment of the State and the Centre in higher posts from the benefit of reservation. In addition, the social advancement of other categories was taken into account for the purpose of including such categories in ‘creamy layer’. While issuing the 1995 Notification, the State Government had followed the criteria laid out in the memorandum dated 8-9-1993 issued by the Union of India. The Court further noted that strangely, by the 2016 Notification, identification of ‘creamy layer’ amongst backward classes was restricted only to the basis of economic criterion. It was observed that:

“In clear terms, this Court held in Indra Sawhney, 1992 Supp (3) SCC 217 that the basis of exclusion of ‘creamy layer’ cannot be merely economic.” 

Reliance was also placed on Indra Sawhney v. Union of India, (2000) 1 SCC 168 and Ashok Kumar Thakur v. State of Bihar, (1995) 5 SCC 403.

The Court concluded that the 2016 Notification was in flagrant violation of the directions issued by the Supreme Court in Indra Sawhney, 1992 Supp (3) SCC 217 and at variance with the memorandum dated 8-9-1993 issued by the Union of India. The criteria mentioned for identifying such of those persons who are socially advanced was not taken into account by the Government of Haryana while issuing the 2016 Notification. It was observed:

“In spite of Section 5(2) of the 2016 Act making it mandatory for identification and exclusion of ‘creamy layer’ to be on the basis of social, economic and other relevant factors, the State of Haryana has sought to determine ‘creamy layer’ from backward classes solely on the basis of economic criterion and has committed a grave error in doing so. On this ground alone, the notification dated 17-8-2016 requires to be set aside.”

Decision

In such view of the matter, the Supreme Court quashed the 2016 Notification dated 17-8-2016. Liberty was given to the State Government to issue fresh notification within a period of 3 months after taking into account principles laid down in Indra Sawhney, 1992 Supp (3) SCC 217 and criteria mentioned in Section 5(2) of the 2016 Act for determining ‘creamy layer’.

As the 2016 Notification was struck down in toto, the Court said that there was no need for adjudicating on validity of the 2018 Notification dated 28-8-2018, which depended solely on the 2016 Notification.

However, it was also directed that admissions to educational institutions and appointment to State services on the basis of these two notifications shall not be disturbed. [Pichra Warg Kalyan Mahasabha Haryana v. State of Haryana, 2021 SCC OnLine SC 635, dated 24-8-2021]


Tejaswi Pandit, Senior Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of L. Nageswara Rao, BR Gavai* and Krishna Murari, JJ has refused to grant any relief to the students who were admitted to the 1st  year Professional MBBS course for the Academic Session 2016-2017 in Glocal Medical College, in contravention of the Notification that provided that the admissions were to be done only through the centralized admission process and not by way of private counselling.

The review petitioners had argued before the Court that they were duly qualified to be admitted inasmuch as, they had cleared the NEET examination. The review petitioners were admitted through the counselling conducted by the Glocal Medical College and had also cleared the 1st year and 2nd year examination.

However, the MCI as well as the State of Uttar Pradesh, submitted on the other hand that the Glocal Medical College, being very well aware about the Notification dated  22.8.2016, had conducted private counselling, which was not permissible in law and as such, the review petitioners, who entered through backdoor entry, are not entitled to any equitable relief.

Rejecting the review petitioners’ contention that the Notification dated 22.8.2016 is only an administrative instruction and therefore not binding, the Court held that the private counselling by Glocal Medical College was conducted contrary to the Notification issued by the State of Uttar Pradesh, which, in turn, was based on the judgment in Modern Dental College and Research Centre v. State of Madhya Pradesh,  2016 SCC OnLine SC 373, decided on 2.5.2016.

3-member oversight committee constituted to oversee the functioning of MCI

Further, the Division Bench of the Allahabad High Court vide judgment dated 15.9.2016 had negated the challenge to the Notification dated 22.8.2016.

Hence, in the light of this position, it was not at all permissible for the Glocal Medical College to have   conducted   private counselling.

“The admissions which were conducted through the said private counselling cannot be termed as anything else but per se illegal.”

Further, MCI vide order dated 27.1.2017 had discharged the said students, who were not admitted through centralized admission process.  25 students admitted in the same college, who were admitted through the centralized admission process, were very much absorbed by the DGME in other colleges. Hence, the contention of the review petitioners that they came to know about the discharge order 21 dated 27.1.2017 issued by MCI only when they had filed a petition in the High Court in 2019 does not stand to reason.

In such scenario, the Court found it difficult to appreciate as to how the results of the students were declared for the 1st year MBBS examination, how they were admitted in the 2nd year MBBS course and how they cleared the 2nd  year MBBS examination, despite the fact that MCI had discharged the students vide order dated 27.1.2017.

Refusing to show any sympathies to students who had entered through backdoor, the Court held,

“The Notification issued by the State of Uttar Pradesh on the basis of the law laid down by this Court clearly provided that the admissions were to be done only through the centralized admission process.  Glocal Medical College in contravention of the said Notification conducted private counselling, which was not at all permissible in law. The students cannot be said to be ignorant about the Notification issued by the State of Uttar Pradesh.”

[Abdul Ahad v. Union of India, 2021 SCC OnLine SC 627, decided on 17.08.2021]


*Judgment by: Justice BR Gavai

For Review Petitioners: Senior Advocate Neeraj Kishan Kaul

For MCI: Advocate Dhawal Mohan

For State of Uttar Pradesh: Advocate Ankit Goel

Case BriefsCOVID 19High Courts

Karnataka High Court: A Division Bench of B. V. Nagaratha and Hanchate Sanjeev Kumar, JJ., dismissed the petition being devoid of merits.

 The instant writ petition was filed under Articles 226 and 227 of the Constitution of India seeking appropriate writ or order or direction in the nature of mandamus or any other appropriate writ, order or direction be issued to the respondents to ensure that NEET Exams should not be postponed for a further period of four months from the earlier stipulated date i.e. 18-4-2021.

It was submitted by the petitioners that on account of the postponement of NEET, one day prior to the date it was to be held (it was to be held on 18-4-2021) i.e., on 17-4-2021, the doctors, aspirants for post-graduate studies, are suffering from stress, anxiety and depression as their plans to study post-graduation has been unsettled on account of procrastination. It was also submitted that the said decision to postpone the holding of NEET, a day prior to the date of Test, was not in accordance with law and the said decision is an arbitrary one and hence, the same has been assailed.

Counsel for the respondents submitted that the said decision is a policy decision which is very sound and it may not be interfered with by this Court, as it is not an arbitrary decision but having regard to the serious nature of the resurgence of COVID-19 pandemic. It was also submitted that Courts do not intervene in academic schedules and matters, which are purely academic in nature.

Learned Assistant Solicitor General submitted that the dates would be notified for holding NEET after 31st August, 2021 after giving time for preparation by the aspirants.

The Court observed that that the postponement of NEET was on account of the circumstances as they emerged and based on the views of the experts. This is not a case where there is the cancellation of NEET this year but only of postponement of the Test from April-2021 to a period subsequent to 31st August, 2021 due to “second wave” of the COVID-19 pandemic.

The Court further observed that Supreme Court declined to approve postponement of the exam last year as the pandemic was not as severe last year, the doctors including NEET aspirants were not requested to perform duties during this “second wave” of the pandemic. But, if such doctors have offered their services during the period April-July, then they would require time to prepare for the Test. Hence, the postponement of NEET will be beyond 31st August 2021.

The Court heldwe find no merit in the writ petition. Hence, it is dismissed.”[Late G.B. Kulkarni Memorial Legal Trust v.  Principal Secretary to Prime Minister of India, 2021 SCC OnLine Kar 12692, decided on 10-06-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances:

Counsel for petitioner: Mr. Vinod G.Kulkarni (party-in-person)

Cousnel for respondents: Mr. M.B.Naragund and Mr. Madhukar Desphande

Case BriefsSupreme Court

Supreme Court: The Division Bench comprising of L. Nageswara Rao* and Krishna Murari, JJ., addressed the plight of NEET students. The Bench stated,

“Decision of government not to reduce minimum marks for admission was propelled by extraneous considerations like sufficient number of Dentists being available in the country and the reasons for which students were not inclined to get admitted to BDS course which remits in the decision being unreasonable. Consideration of factors other than availability of eligible students would be the result of being influenced by irrelevant or extraneous matters.”

Observing the scarcity of qualified aspirants, Dental Council of India had recommended lowering of qualifying cut off percentile for admission to (Bachelor of Dental Surgery) BDS course for the academic year 2020-2021. Pursuant to which the Petitioners had submitted a representation to government seeking to lower the qualifying cut off percentile. Recommendation of the Council had been rejected by Government which led to filing of the instant petition under Article 32 of the Constitution.

Proviso to Sub-Regulation (ii) of Regulation II of the Regulations is as follows:

“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 BDS Course, the Central Government in consultation with Dental Council of India may at its discretion lower the minimum marks required for admission to BDS Course for candidates belonging to respective categories and marks so lowered by the Central Government shall be applicable for the said academic year only”.

Whether demand to reduce qualifying cut off was rightly rejected?

Proviso to Sub-Regulation (ii) of Regulation II had empowered government to exercise its discretion to lower minimum marks only when sufficient numbers of candidates fail to secure minimum marks. Government could not for any purpose other than the one specified in the proviso to Regulation II (5) (ii). There were three reasons given for the decision not to lower minimum marks by the state:

  • Available seats vis-à-vis eligible candidates were 1:7 and therefore there was no dearth of eligible candidates.
  • Sufficient number of Dentists in India. There was one Dentist for every 6080 persons which was better than the WHO norms of 1 : 7500.
  • Lack of keenness of students to join BDS and inability to pay exorbitantly high fees charged by private colleges

On the submission of existence of seven candidates against one seat, the Bench observed that this calculation of the State was without taking into account the fact that admissions for UG AYUSH and other UG medical courses were included in the NEET for the first time from in 2020. Total number of seats available for the academic year 2020-2021 for MBBS were 91,367, BDS were 26,949 and AYUSH were 52,720 making it a total of 1,71,036 seats. Whereas, the NEET qualified candidates were 7,71,500.

It did not appear that while arriving at decision not to lower minimum marks, the State had consulted the Council in accordance with the proviso to Sub-Regulation (ii) of the Regulation II. Hence, ratio of seats available vis-à-vis eligible students was 1 : 4.5 and not 7. Noticing the above, the Bench stated,

“Decision which materially suffers from the blemish of overlooking or ignoring, wilfully or otherwise, vital facts bearing on the decision is bad in law. There is an implicit obligation on the decision maker to apply his mind to pertinent and proximate matters only, eschewing the irrelevant and the remote.”

The Bench concurred with the argument of the petitioners that lowering minimum marks and reducing percentile for admission to the first-year BDS course would not amount to lowering the standards of education Considering the fact that minimum marks had been reduced by the State for super speciality courses for last year and AYUSH courses for the current year, the Bench expressed,

“If reducing minimum marks amounts to lowering standards, the State would not do so for super speciality courses.”

Hence, the Bench directed that vacant seats in first year BDS course for the year 2020-2021 should be filled up from the candidates who had participated in the NEET after lowering the percentile mark by 10 percentile. The petition was disposed of with further directions to Managements of private Dental Colleges to consider reducing fee charged by them to encourage students to join the Colleges.

[Harshit Agarwal v. Union of India, 2021 SCC OnLine SC 64, decided on 08-02-2021]


Kamini Sharma, Editorial Assistant has put this report together 

*Judgment by: Justice L. Nageswara Rao

Appearances before the Court by

For petitioners: Senior Advocate Maninder Singh and advocate Krishna Dev Jagarlamudi

For Union of India: Additional Solicitor General Aishwarya Bhati

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of L. Nageswara Rao, Hemant Gupta and Ajay Rastogi, JJ has directed that that there will be no reservation in Super Specialty Medical Courses to in-service doctors for the academic year 2020-2021.

The direction reads,

“… the counselling for admission to Super Specialty Medical Courses for the academic year 2020- 2021 shall proceed on a date to be fixed by the competent authority without providing for reservations to in-service doctors for the academic year 2020-2021.”

Facts considered

  • The information bulletin for admission to Super Specialty Courses for the academic year 2020-2021 was issued on 03.08.2020. Point 5.16 of the bulletin provided that there shall be no reservations of seats for Super Specialty DM/MCH Courses.
  • The NEET Super Specialty Examination was conducted on 15.09.2020 and the results were declared on 25.09.2020.
  • Counselling was scheduled to commence on 08.10.2020.
  • The Medical Counselling Committee issued the counselling scheme for 100 per cent All India Quota for NEET Super Specialty DM/MCH DMB 2020-2021 in which it was made clear that there shall be no reservation for Super Specialty Medical Courses.
  • The State of Tamil Nadu issued a Government Order dated 07.11.2020 by which a decision was taken to reserve 50 per cent of the Super Specialty seats in Government Medical Colleges in the State of Tamil Nadu for in-service candidates.
  • Kerala Medical Officers Admission to Postgraduate Courses under Service Quota Act, 2008 provides for 40 per cent reservation for in-service doctors in admission to the Super Specialty Medical Courses. Admittedly, the Act was not implemented for the years 2017-2019. By the impugned order, the Kerala High Court directed the concerned authorities to carry out the provisions of the Act and provide reservation to in-service Doctors. However, the State of Kerala has shown its inability to implement the said Act for admission to the Super Specialty Medical Courses for the current academic year i.e. 2020-2021.

Arguments against in-service Reservation

It was argued that the information bulletin made clear to the candidates that there shall be no reservation for admission to Super Specialty Courses. They further contended that the Rules of the game cannot be changed mid-stream and no reservation can be provided for this academic year i.e. 2020-2021 as the procedure for selections for admission to Super Specialty Medical Courses commenced a long time back.

It was also brought to Court’s notice that the 5-judge bench decision in Tamil Nadu Medical Officers Association v. Union of India2020 SCC OnLine SC 699[1] was not applicable as the information bulletin for admission to Super Specialty Courses for the academic year 2020-2021 was issued on 03.08.2020 and the judgment that was delivered on 31.08.2020, clearly stated that the judgment shall operate prospectively.

Arguments supporting in-service Reservation

It was argued that administrative inconvenience cannot be a ground to interfere with the order passed by the High Court directing implementation of reservation to in-service doctors in accordance with the Kerala Medical Officers Admission to Postgraduate Courses under Service Quota Act, 2008.

Further, the Constitution Bench in its judgment in Tamil Nadu Medical Officers Association v. Union of India, 2020 SCC OnLine SC 699 only saved the admissions which have already been made. As the admissions for the year 2020-2021 have not been completed, the said judgment has to be implemented for admissions to the academic year 2020- 2021.

What the Supreme Court said

The Court noticed that the process for admissions to Super Specialty Medical Courses started on 03.08.2020 and it was made clear to all the competing candidates that there shall be no reservation to Super Specialty Medical Courses. Hence,

“The Government order issued by the State of Tamil Nadu on 07.11.2020 reserving 50 per cent seats for in-service doctors would be detrimental to the interests of the meritorious Doctors as 50 per cent of the available seats in the State of Tamil Nadu in Super Specialty Medical Courses will not be available to them.”

Rejecting the submission that nobody will be prejudiced if the Government Order is given effect to, the Court said that there will be reduction of 50% of seats in Super Specialty courses in Tamil Nadu if the Government Order is carried out, which is detrimental to their chances of admission.

The Court also took note of the fact that the Kerala Medical Officers Admission to Postgraduate Courses under Service Quota Act, 2008 providing for 40 per cent reservation for in-service doctors in admission to the Super Specialty Medical Courses has not been implemented for the years 2017-2019. And the State of Kerala has shown its inability to implement the said Act for admission to the Super Specialty Medical Courses for the current academic year i.e. 2020-2021.

In the State of Tamil Nadu too, no reservation for in-service Doctors was implemented since 2016.

The Court, hence, held

“As the admission process is at the final stages, we cannot permit reservation for in-service Doctors for this year.”

[Dr. Prerit Sharma v. Dr. Bilu B.S.,  2020 SCC OnLine SC 961, decided on 27.11.2020]


For appellant: Senior Advocates Dushyant Dave and Shyam Divan

For National Medical Commission: Senior Advocate Vikas Singh

For Union of India: Additional Solicitor General Sanjay Jain

For State of Kerala: Senior Advocate Jaideep Gupta

For State of Tamil Nadu: Senior Advocates C.S. Vaidhyanathan and V. Giri,

For Respondents in the Appeal arising out of SLP (C) No.13670-13672 of 2020: Senior Advocate Mr. P. Wilson

For Respondent in Appeal arising out of SLP (C) No.12891 of 2020.: Advocate George Varghese Perumpallikuttiyil

[1] The 5-judge Constitution bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and Aniruddha Bose, JJ in Tamil Nadu Medical Officers Association v. Union of India2020 SCC OnLine SC 699 held that the Medical Council of India has no power to make any reservation for in-service candidates in Post Graduate Medical Course in States and that only States are allowed to grant the benefit of reservation of seats to in-service doctors in the National Eligibility cum Entrance Test (NEET) postgraduate degree courses.
Holding that States have the legislative competence and/or authority to provide for a separate source of entry for in-service candidates seeking admission to postgraduate degree/diploma courses, in exercise of powers under Entry 25, List III, the bench observed that
“…policy must provide that subsequent to obtaining the postgraduate degree by the concerned in-service doctors obtaining entry  in degree courses through such separate channel serve the State in the rural, tribal and hilly areas at least for five years after obtaining the degree/diploma and for that they will execute bonds for  such  sum the   respective  States  may   consider   fit  and  proper”
The Court, however, specifically   observed   and   clarified   that the present decision shall operate prospectively, and any admissions given earlier taking a contrary view shall not be affected by this judgment. (Read more…)

COVID 19Hot Off The PressNews

Dr Harsh Vardhan, Union Minister for Health and Family Welfare today announced the Government’s decision to introduce a new category called ‘Wards of COVID Warriors’ in the guidelines for selection and nomination of candidates against Central Pool MBBS seats for the academic Year 2020-21.

Central Pool MBBS seats may be allocated for selection and nominations of the candidates from amongst the wards of “COVID Warriors”, who have lost life due to COVID 19; or died accidentally on account of COVID 19 related duty.

Reminding everyone that the definition of COVID Warrior has been laid down by Government of India while announcing the insurance package of ₹50 lakhs for them, the Minister said, “COVID Warriors are all public healthcare providers including community health workers, who may have to be in direct contact and care of COVID-19 patients and who may be at risk of being impacted by this. Private hospital staff and retired/volunteer/ local urban bodies/ contracted/ daily wage/ ad-hoc/ outsourced staff requisitioned by States/ Central hospitals/ autonomous hospitals of Central/ States/UTs, AIIMS and Institutes of National Importance (INIs)/ hospitals of Central Ministries drafted for COVID-19 related responsibilities are all included.” He added that the State/UT Government will certify the eligibility for this category.

Five (05) Central Pool MBBS seats have been reserved for this Category for the year 2020-21.

The selection of candidates will be made by the Medical Council Committee (MCC) through online application on the basis of rank obtained in the NEET-2020 conducted by National Testing Agency.


Ministry of Health and Family Welfare
[Press Release dt. 19-11-2020]
[Source: PIB]
Case BriefsHigh Courts

Madras High Court: A Division Bench of N. Kirubakaran and B. Pugalendhi, JJ., said that a Constitutional Authority has to take a decision, if a Bill is presented for assent, as soon as possible. It was also stated that the protection under Article 361 of the Constitution has been given by the Framers of the Constitution, with hope and trust in the Appointees that they would perform their constitutional functioning promptly.

The High Court was hearing a petition seeking direction to the Governor to take a decision with regard to “The Tamil Nadu Admission to Under Graduate Courses in Medicines, Dentistry, Indian Medicine and Homeopathy on preferential basis to the Students of the Government Schools Bill, 2020” pending before him for assent. The Advocate General submitted before to the Court that the Constitutional Authority is in need of three to four weeks time to take a decision with regard to the Bill. It was noted that the said Bill was passed unanimously on 15-09-2020 and the same was sent for assent to the Constitutional Authority on the very same day, yet the same is pending for last two months.

It was noted by the Court that since the introduction of NEET Examination in the year 2017, so far only 14 students from the Government Schools got admission to the Medical Courses. On High Court’s posing a question with regard to the non-taking of a decision by the Constitutional Authority, the Advocate General referred Article 361(“Protection of President and Governors and Rajpramukhs“) of the Constitution of India and submitted that in the said Article, protection has been given that the Governor who is not answerable to any Court for exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties.

The Court was of the view that no doubt Article 361 gives protection to the Constitutional Authority. However, in the given circumstances, a decision has been taken, taking into consideration the future of the Government School students, who are invariably from marginalized and poor sections, as soon as possible as provided under Article 200 of the Constitution of India.

Article 200 of the Constitution of India :

200. Assent to Bills.—When a Bill has been passed by the Legislative Assembly of a State or, in the case of a State having a Legislative Council, has been passed by both Houses of the Legislature of the State, it shall be presented to the Governor and the Governor shall declare either that he assents to the Bill or that he withholds assent therefrom or that he reserves the Bill for the consideration of the President:

Provided that the Governor may, as soon as possible after the presentation to him of the Bill for assent, return the Bill if it is not a Money Bill together with a message requesting that the House or Houses will reconsider the Bill or any specified provisions thereof and, in particular, will consider the desirability of introducing any such amendments as he may recommend in his message and, when a Bill is so returned, the House or Houses shall reconsider the Bill accordingly, and if the Bill is passed again by the House or Houses with or without amendment and presented to the Governor for assent, the Governor shall not withhold assent therefrom:

Provided further that the Governor shall not assent to, but shall reserve for the consideration of the President, any Bill which in the opinion of the Governor would, if it became law, so derogate from the powers of the High Court as to endanger the position which that Court is by this Constitution designed to fill.

The High Court stated that, “A perusal of Article 200 – ‘Assent to Bills’, would reveal that the Constitutional Authority has to take a decision, if a Bill is presented for assent, as soon as possible.

It was also said that the protection under Article 361 “has been given by the Framers of the Constitution, with hope and trust in the Appointees that they would perform their constitutional functioning promptly and there would not be any situation, wherein they would be called for to give an explanation or they will be questioned by the Court of law.

In view of the above, the High Court concluded that, when the situation changes and present kind of situation arises, a different approach has to be taken by the Courts in the interest of the public. It is well-settled law that “Extraordinary situation requires extraordinary remedies”. When public interest requires, the High Court has to do its constitutional duties and to address the situation. However, the Court was of the opinion that such a situation would not arise to pass any order in the present matter. [S. Ramakrishnan v. State of T.N., 2020 SCC OnLine Mad 5207, decided on 29-10-2020]

Case BriefsSupreme Court (Constitution Benches)

Supreme Court: The 5-judge Constitution bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and Aniruddha Bose, JJ has held that the Medical Council of India has no power to make any reservation for in-service candidates in Post Graduate Medical Course in States and that only States are allowed to grant the benefit of reservation of seats to in-service doctors in the National Eligibility cum Entrance Test (NEET) postgraduate degree courses.

Holding that States have the legislative competence and/or authority to provide for a separate source of entry for in-service candidates seeking admission to postgraduate degree/diploma courses, in exercise of powers under Entry 25, List III, the bench observed that

“…policy must provide that subsequent to obtaining the postgraduate degree by the concerned in-service doctors obtaining entry  in degree courses through such separate channel serve the State in the rural, tribal and hilly areas at least for five years after obtaining the degree/diploma and for that they will execute bonds for  such  sum the   respective  States  may   consider   fit  and  proper”

The Court, however, specifically   observed   and   clarified   that the present decision shall operate prospectively, and any admissions given earlier taking a contrary view shall not be affected by this judgment.

KEY HIGHLIGHTS OF THE 242-PAGES LONG VERDICT

On the scope of “coordination and determination of standards” under Entry 66 List I

Entry 66 List I is a specific entry having a very limited scope and only deals with “coordination and determination of standards” in higher education. The term “coordination and determination of standards” means   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.  Further, it 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 Entry 66 List I, 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 Entry 25 of List III.”

On the scope of MCI’s power to frame regulations with respect to reservation

The Medical  Council   of   India which  has  been constituted   under   the   provisions   of   the   Indian Medical   Council   Act,   1956   is   the   creature   of   the statute  in  exercise  of  powers  under  Entry  66 List  I and   has   no   power   to   make   any   provision   for reservation,   more   particularly,   for   in-service  candidates  by   the   concerned  States,   in   exercise  of powers under Entry 25 List III.

Section 33 of the MCI Act does not confer any authority and/or power to the MCI to frame the regulations with respect to reservation in the medical courses, more particularly, to provide for a separate source of entry for in-service   candidates   seeking   admission   to   postgraduate   degree courses, as sought to be contended on behalf of the MCI and counsel opposing for providing for a separate source of entry for in-service candidates.

“… it cannot be said that the Medical Council of India would have any authority or jurisdiction to   frame   any   regulations   with   respect   to   reservation   and/or making special provision like providing for a separate source of entry for in-service candidates seeking admission to postgraduate degree courses.”

On the validity of Regulation 9 of MCI Regulations, 2000

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

“…if   it   is   held   that   Regulation   9,   more particularly, Regulation 9(IV) deals with reservation for   in-service   candidates,   in   that   case,   it   will   be ultra vires of the Indian Medical Council Act, 1956 and   it   will   be   beyond   the   legislative   competence under Entry 66 List I.”

Regulation 9 of MCI Regulations, 2000 to the extent tinkering with reservation provided by the State for in-service candidates is ultra vires on the ground that it is arbitrary, discriminatory and violative of Articles 14 and 21 of the Constitution of India.

On the need for in-service quota

There is a legitimate and rational basis in providing a separate channel/source of entry for in-service candidates in order to encourage them to offer their services and expertise to the State. There is a sufficient nexus with the larger goal of equalization of educational opportunities and to sufficiently prefer the doctors serving in the various hospitals run and maintained out of public funds, in the absence of which there would be serious dearth of qualified Post-graduate doctors to meet the requirements of the common public.  It is stated that the Government is facing public health crisis. The effective and competent medical treatment is not available in the rural and difficult areas.  In-service doctors who pursue higher studies would naturally serve in rural and difficult areas if such incentive in the form of reservation is provided.

“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 health care facilities for its citizens by upgrading the qualifications of the existing in-service doctors so that the citizens may get more specialized health care 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.”

On State’s power to provide in-service Quota

The power of the State under Entry 6, List II of Schedule VII to legislate in the subject matter of public health and hospital is exclusive. 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 Entry 25 List III, read with Entry 6, List II.  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.

 The occupied field of Union legislation in exercise of power under Entry 66, List I is related to minimum standards of medical education and the State   is   providing the in-service quota without impinging the prescribed minimum standards.

“State is within its power and authority to provide such a preferential treatment to provide a better public health in the rural, tribal and hilly areas.”

[TN Medical Officers Association v. Union of India, 2020 SCC OnLine SC 699, decided on 31.08.2020]

Hot Off The PressNews

Supreme Court: In a major setback to the students appearing for National Eligibility cum Entrance Test (NEET) and Joint Entrance Examination (JEE), a bench headed by Arun Mishra, J has dismissed a petition seeking the postponement of the entrance exams scheduled to be held in September 2020.
The bench observed that the career of students cannot be put under jeopardy for long.

“Life cannot be stopped. We have to move ahead with all safeguards and all… Are you (students) ready to waste one whole year?…Now, the courts are also going to open gradually for physical hearing. We also have these glass panels now,”

Solicitor General Tushar Mehta, appearing for the National Testing Agency, submitted before the Court that all the safeguards will be taken while holding the exam.

Advocate Alakh Alok Srivastava for the petitioners told the court that lakhs of students are looking to Supreme Court for relief. He said that Prime Minister also said on Independence Day that vaccine is on its way.

The petition, filed by eleven students from eleven states, contended that the decision to hold JEE (main) exam through online mode from September 1 to 6 and NEET UG-2020 through offline mode on September 13 at 161 centres across India are arbitrary, whimsical and violative of the fundamental right to life of
lakhs of affected students.

The plea said that the Institution of Chartered Accountants of India (ICAI) had cancelled the CA exams citing COVID-19 risk and remaining exams of CBSE/ICSE/ISC have also been cancelled. It said that the Common Law Admission Entrance Test (CLAT) and the National Institute of Open School exams have also been postponed.

“Lakhs of young students are likely to appear in the aforesaid JEE (Main) April2020 and NEET UG-2020 Exams in the month of September 2020. Meanwhile, COVID-19 cases are increasing in India at an alarming rate. The deadly pandemic COVID-19 has already affected about 20 Lakh people in India and the situation is worsening by every passing day,”

It further states that conducting the aforesaid examination across India at such perilous time is nothing else but putting lives of lakhs of young student at utmost risk and danger of disease and death.


Source: ANI

Case BriefsHigh Courts

Orissa High Court: A Division Bench of Mohammad Rafiq, CJ and Debabrata Dash, J. rejected the prayer of the petitioner on account of concealment of material facts.

The facts of the case are that the petitioner after completing her MBBS got herself registered under the Odisha Council of Medical Registration, Bhubaneshwar and joined as a tutor on contract basis at PHC (N) Biridi from 2014-2015 and joined as a tutor on contract basis in SLNMCH, Koraput from 2017- 2019 and later she joined in regular service in 2019 at Gumma Gajpati where she got transferred again to SLNMCH, Koraput. Thereafter the petitioner availed leave for September 2019 to January 2020 and resumed duty on 21-01-2020.

Counsel P. R Singh , L.N Rayatsingh, A.K Rout and S. K Dwivedy on behalf of the petitioners submitted that the petitioner applied for NEET PG 2020 as an in service candidate and was declared successful and as she is an in service candidate she deserves to get all the benefits with regards to extra weightage, percentage increase benefit etc. It was further submitted that as she verified her documents on time but was not able to present her service certificate on time due to lockdown she could not avail the benefits. It was prayed that she be allowed to appear for second round of counseling as an in service candidate only.

Counsel M.S Sahoo and R.C. Mohanty on behalf of the respondents stated that the petitioner applied for the course as a direct candidate and not as an in service candidate. He also submitted that the petitioner has concealed material facts in order to gain in service benefits which are bad in the eyes of law.

Court on hearing both the parties held that as the petitioner appeared for counseling in the first phase as a direct candidate the prayer to allow her to appear as an in service candidate for second round of counseling stands unjustified. It was further held that as the petitioner has not approached the court with clean hands which is the underlying principle for fair adjudication; the petitioner is not entitled to avail any kind of in service candidate benefits.

In view of the above the petition stands disposed off.[Dr Shams Jahan v State of Odisha, 2020 SCC OnLine Ori 543 , decided on 24-07-2020]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Arun Mishra, Vineet Saran and MR Shah, JJ has held that prescribing uniform examination of NEET for admissions in the graduate and postgraduate professional courses of medical as well as dental science is not in violation of the rights of the unaided/aided minority to administer institutions under Articles 19(1) (g) and 30 read with Articles 25, 26 and 29(1) of the Constitution. It said,

The Court was hearing the challenge to the provisions of Medical Council Act, 196 and Dentists Act, 1948 and Regulations thereto by which a uniform NEET examination was made mandatory for admissions in graduate and postgraduate medical and dental courses. It was argued before the curt that State had no power to compel an unaided minority institution to admit students through a single centralized national examination such as NEET. The unaided minority professional colleges have the fundamental rights to choose the method and manner in which to admit its students, subject to satisfying the triple test of having a fair, transparent, and non­exploitative process.

The Court, in a 108-pages log verdict, referred to a long list of judgments dealing with the right of unaided/aided minorities and the scope of rights under Article 19(1)(g) and Article 30 of the Constitution and came to the conclusion that,

“rights under Articles 19(1)(g) and 30 read with Articles 25, 26 and 29(1) of the Constitution of India do not come in the way of securing transparency and recognition of merits in the matter of admissions. It is open to regulating the course of study, qualifications for ensuring educational standards. it is open to imposing reasonable restrictions in the national and public interest.”

Unimpressed with the present education system, the bench said that by and large, at present education is devoid of its real character of charity, it has become a commodity. To weed out evils from the system, which were eating away fairness in admission process, defeating merit and aspiration of the common incumbent with no means, the State has the right to frame regulatory regime for aided/unaided minority/private institutions as mandated by Directives Principles, Articles 14 and 21 of the Constitution.

On Article 19(1)(g)

The fundamental right under Article 19(1)(g) was subject to reasonable restriction in the interest of the student’s community to promote merit, recognition of excellence, and to curb the malpractices. Uniform Entrance Test qualifies the test of proportionality and is reasonable.

The minority institutions are equally bound to comply with the conditions imposed under the relevant Acts and Regulations to enjoy affiliation and recognition, which apply to all institutions. In case they have to impart education, they are bound to comply with the conditions which are equally applicable to all.

“There is no right given to maladminister the education derogatory to the national interest. The quality of medical education is imperative to sub­serve the national interest, and the merit cannot be compromised.”

On Article 30

The rights to administer an institution under Article 30 of the Constitution are not above the law and other Constitutional provisions and hence, are not violated by provisions carved out in Section 10D of the MCI Act and the Dentists Act and Regulations framed by MCI/DCI. Reasonable regulatory measures can be provided without violating such rights available under Article 30 of the Constitution to administer an institution. Professional educational institutions constitute a class by themselves. Specific measures to make the administration of such institutions transparent can be imposed.

“The regulatory measures by prescribing NEET is to bring the education within the realm of charity which character it has lost. It intends to weed out evils from the system and various malpractices which decayed the system.”

Scope of Government interference

While the Court agreed that there was no doubt as to the concept of limited Government and least interference is welcomed, it however, said that in which field and to what extent balancing with the larger public and national interest is required.

The Constitution provides a limitation on the power of the State to interfere with life, liberty, and rights, however, the concept of limited government cannot be extended to a level when it defeats the very national interest.”

Holding that the impugned provisions qualify the doctrine of proportionality, the Court explained that the maladies with which professional education suffers in this country are writ large and that the regulatory framework created by the MCI/ DCI is concomitant of conditions, affiliation and recognition, and providing central examination in the form of NEET cannot be said to be violative of the rights under Articles 19(1)(g) and 30. The regulatory framework is not restrictive, but caters to the effective enjoyment of the rights conferred under the aforesaid provisions.

[Christian Medical Vellore Association v. Union of India, 2020 SCC OnLine SC 423  , decided on 29.04.2020]

Case BriefsHigh Courts

Uttaranchal High Court: Manoj K. Tiwari, J. contemplated a writ petition filed by the petitioners who participated in NEET undergraduate exam conducted by Central Board of Secondary Education and had qualified the said exam.

The petitioners were eligible for admission and according to the petitioners, they opted for Himalayan Institute of Medical Sciences, Jolly Grant, Dehradun for admission against a State Quota seat, as they are permanent residents of State of Uttarakhand. It was contended by the petitioner that the said Institute charged an exorbitant fee as tuition fee and a sum of Rs 9 lakhs was required to be deposited by the petitioner.

Counsel for the petitioners Prateek Tripathi submitted that the fee, which was being charged by the respective Institute, was without any authority of law inasmuch as it had not been determined by the Fee Regulatory Committee.

On the other hand, Sanjeev Agarwal, counsel appearing for Himalayan Institute of Medical Sciences, submitted that fee, which was being charged, had been duly determined by the Fee Regulatory Committee and had also been notified by the State Government.

The Court observed that petitioners were yet to be admitted in the said Institute and they had an option for some other Medical College in the second or subsequent counseling and as the quantum of the fee was known to the petitioners already, therefore, the Court was not inclined to interfere in the matter at this stage. However, it was needed for the ends of justice that petitioners to appear before Secretary, Higher Education, Uttarakhand and were allowed to represent themselves. It was also observed that to abide by the deadline for depositing such a huge amount was harsh and practically impossible to follow; therefore, it was provided that petitioner was eligible to participate in the second round of counseling.[Dushyant v. State of Uttarakhand, 2019 SCC OnLine Utt 573, decided on 11-07-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: The Division Bench comprising of Harinder Singh Sidhu & Arun Monga, JJ. dismissed the writ petition on the ground that there was no legal infirmity in the action of the State of Punjab to adopt the wider definition of the NRI in the domain of policymaking.

A writ petition was made against Clause 17 of the Notification whereby, definition and scope of Non-Resident Indian (NRI) have been restricted to include only an NRI and/or children of NRI.

The facts of the case were that the petitioner took the National Eligibility cum Entrance Test (for short ‘NEET’) conducted for admission to MBBS/BDS in medical colleges situated all over India including the State of Punjab. The petitioner qualified the cut off marks prescribed in the examination and was eligible to apply for admission in the medical colleges. The petitioner was primarily aggrieved by the action of the State in excluding the first degree relations of NRI and wards thereof from the realm of the definition of ‘NRI’.

Pankaj Bansal, Counsel for the petitioner submits that by restricting the Category I to mean ‘an NRI and/or children of NRI’ results in hostile discrimination towards the students in the State of Punjab. NRI reservation was provided in all the medical colleges of India wherein a wider meaning has been given to word ‘NRI’ by including the first degree relations of NRI and wards of NRI within the meaning of word ‘NRI’. Learned counsel for the petitioner has also emphatically argued that restriction on the scope of the word ‘NRI’ has no reasonable nexus with the objectives sought to be achieved. He submits that if the scope of the definition of NRI is widened then the wider pool of talent would be available and the same will thus advance the requisite merit. The petitioner put reliance on the case of  P.A. Inamdar v. State of Maharashtra, (2005) 6 SCC 537, wherein the Supreme Court has discussed the definition of NRI.

Rashmi Attri and M.S. Longia, Counsels for the respondents opposed the impugned notification on the ground that there are quite a large number of NRIs and in its wisdom, the State Government had rightly restricted the scope of the definition of NRI to mean either ‘an NRI or children of the NRI’. Enlarging the scope of the same to first degree relatives and/ or the wards of the NRI would open flood gates for the applicants to seek the benefit of NRI quota.

High Court thus opined that purpose of narrowing down the definition of ‘NRI’ vide clause 17, does not miss the very ratio laid down in Inamdar’s case, inasmuch as, it has been clearly laid down by the Apex Court that under the garb of NRI quota less meritorious students who can afford to spend more money get admission even though neither the student is an NRI nor his/ her parents are NRIs.

Thus, the Court was of the opinion that the purpose of restricting the definition is to give weightage only to the genuine cases where the children of those parents who have migrated to other countries to get the benefit of education in their native country. Court further added that “we also do not find any merit in the argument that the narrowing of the scope of the definition of ‘NRI’ by the State is hostile discrimination qua the students of Punjab. It is open for the State Government to make any policy with regard to the residents of the State and no interference is warranted by this Court in the domain of policymaking. It is up to the State to widen or narrow the scope of the definition of ‘NRI’ and such exercise of power would not amount to any discrimination.” Thus the petition was dismissed.[Asmita Kaur v. State of Punjab, 2019 SCC OnLine P&H 937, decided on 26-06-2019]

Case BriefsHigh Courts

Patna High Court: A Single Judge Bench comprising of Chakradhari Sharan Singh, J., allowed the application which challenged press communiqué issued by State Government whereby NEET qualification was made mandatory for admission to AYUSH courses.

Facts of the case were that petitioner was aggrieved by a press communiqué released by the Health Department, Government of Bihar making NEET mandatory exam for entrance in AYUSH courses. Petitioner contended that the communiqué was provided after the last date of filing form for NEET was over and that requirement for AYUSH courses were distinct from one required in MBBS/BDS courses as NEET is an entrance exam specifically for MBBS and BDS. Whereas respondent defended the communiqué by stating it to be a result of Supreme Court judgment which stated the requirement of a common entrance test for admission to medical courses with a sole purpose of granting admission to meritorious students. The question before Court was to see if NEET qualification can be made a mandatory requirement for admission to AYUSH courses without amending the Indian Medical Council Act, 1970 and regulations thereunder. Court answered the above question by stating that without amendment in Act and Regulation, NEET qualification cannot be made mandatory for entry into other courses than MBBS/BDS.

High Court was of the view that the notification came after the last date for filing the application form of NEET was over and that syllabus and requirement for AYUSH courses were different from MBBS/BDS. The decision of Union government making NEET mandatory for admission to AYUSH (UG) courses was found to be contrary to regulations framed under the Indian Medicine Central Council Act, 1970. With the above view, Court set aside the letter of the Central government and quashed the press communiqué issued by State government. [Vihar Private Unani Medical Colleges v. Union of India,2018 SCC OnLine Pat 1857, order dated 10-10-2018]

Case BriefsSupreme Court

Supreme Court: After Senior Advocate Arvind Datar brought to the notice of the Court that the Central Board of Secondary Education (C.B.S.E.) has passed an order directing all the students to produce Aadhar number to register themselves for the National Eligibility-cum-Entrance Test (NEET) examination, the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ, directed:

“the students who intend to register in the said Board for NEET examination and for any other All India examinations, need not necessarily produce the Aadhaar number for the present, but they may be asked to produce any alternative identification number, such as ration card, passport, voter ID, driving licence and bank account.”

The Court also asked C.B.S.E. to upload the necessary information on their website so that students are not affected.

The said interim order was passed during Day 15 of the Aadhaar Hearing where Senior Advocates like Shyam Divan, Kapil Sibal, Gopal Subramanium and Arvind Datar have been arguing on the issue of Aadhaar being made mandatory by the Government despite various interim orders passed by the Supreme Court. Senior Advocate and Former Finance Minister P. Chidambaram had begun his submissions on the issue of Aadhaar Act, 2016 being passed as a Money Bill. He will continue his arguments on the next date of hearing i.e. March 13, 2018, after which the Court will decide on whether or not to pass an interim order on the issue of extending the deadline for linking Aadhaar to Bank Accounts. As per the present deadline, it is mandatory to get the Aadhaar linked to the Bank accounts by March 31, 2018. The Court had earlier, on 15.12.2017, extended the deadline for linkage with Schemes, Bank Accounts, Mobile Phones from December 31, 2017 to March 31, 2018. [Justice K.S. Puttaswamy v. Union of India, Writ Petition (Civil) No.494/2012, order dated 07.03.2018]

Also, read the highlights from the ongoing Aadhaar Hearing before the 5-judge bench:

To read the highlights from Senior Advocate Arvind Datar’s submissions, click here and here.

To read the highlights from Senior Advocate Gopal Subramanium’s submissions, click herehere and here.

To read the highlights from Senior Advocate Kapil Sibal’s arguments, click here, here and here.

Looking for the detailed submissions of Senior Advocate Shyam Divan? Read the highlights from Day 1Day 2, Day 3, Day 4 , Day 5, Day 6 and Day 7 of the hearing.

Hot Off The PressNews

Senior Advocate Arvind Datar continued his submissions before the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ on Day 15 of the Aadhaar Hearing. Earlier, on Day 14, he had argued on the issue of Linking Bank Accounts to Aadhaar as per Rule 9 of Prevention of Money-laundering Act, 2002. After Arvind Datar concluded his submissions, Senior Advocate P. Chidambaram began his arguments on the issue of Aadhaar Act, 2016 being introduced as a Money Bill.

On the question of extending the deadline for linking Aadhaar, Chandrachud, J said:

“we cannot extend the dates for linking at the last moment because the financial institutions will be in a state of uncertainty till then thinking 31st March to be the last date for linking.”

The Court, however, said that it will pass an interim order, if required, on the issue on the next date of hearing i.e. 13.03.2018, after P. Chidambaram has concluded his submissions.

Below are the highlights from Day 15 of Aadhaar Hearing:

Arvind Datar’s submissions:

  • If you don’t give Aadhaar, your accounts will become inoperable. It can’t be called consent. There’s no option to opt out.
  • Aadhaar was preceded by NIA bill. Aadhaar Act was only for the purpose mentioned in the objects and using it for any other purpose would be invalid.
  • Chandrachud, J: The moment you extend Aadhaar to private entities, the money bill aspect will be gone.
  • Arvind Datar: Yes. The Act was passed as a money bill without any regard to the recommendations of Rajya Sabha. Had it not been a money bill, it would go to Rajya Sabha, recommendations would be considered, and Section 57 would not be there. An opt out clause would be there.
  • If one party is in dominating condition, it is not a free consent which is the case in this matter. To enroll or not to enroll is my choice. It is my decisional autonomy to part with or not to part with my personal information.
  • Today it is not possible for a person to survive without an Aadhaar. It has its intrusion from birth to death of an individual.
  • Aadhaar/PAN judgment should be revisited in light of the privacy judgment:
    • After Privacy judgment, it is the personal autonomy of the person whether she wants to take Aadhaar or not or even if she has aadhaar- whether she wants to link Aadhaar or not.
    • Attorney General, during the PAN case, had stated linking Aadhaar with PAN is the only foolproof method to ensure there are no fake PAN. (Tells about the case where a person entered 12 zeroes while filing income tax returns, his returns were accepted and refund processed.)
    • If your purpose is to eliminate fakes, it need not be perpetual. After achieving the purpose, my data should be returned. What is the need to keep it perpetually?
  • Mandatory Aadhaar for applying for NEET Exam:
    • In Gujarat, one cannot apply for NEET entrance exam without production of Aadhaar, last date being 9 March. Saya that it is a clear violation of the interim orders of the Court.
    • Attorney General KK Venugopal:  State has not authorised CBSE to make Aadhaar mandatory for entrance exams.
    • Bench: “Any such authority has the right to ask for some kind of identification but not exclusively Aadhaar. We will consider the relief for this particular case at the end of Mr. Chidambaram’s arguments.”

P. Chidambaram’s submissions on the issue of Money Bill:

  • Can one can bypass the scrutiny of Rajya Sabha by terming a bill as Money Bill?
  • A money bill cannot be introduced in Rajya Sabha. In this case, Rajya Sabha becomes only a recommending house. They have no legislative power but only recommendative power.
  • Money bill is a very special kind of bill. Therefore, in the light of denudation of the powers of Rajya Sabha and deprivation of powers of President, these provisions should be construed very narrowly and strictly so that nothing escapes in the guise of money bill.

Interim Order on Aadhaar being made mandatory for Entrance Exams:

The Bench passed an interim order on the CBSE NEET entrance exam and all other All-India examination that the applicants need not produce Aadhaar number for applying. They can produce any alternative means of identification including Ration card, driving licence, etc. The order will also be uploaded on the CBSE website.

To read the highlights from Senior Advocate Gopal Subramanium’s submissions, click herehere and here.

To read the highlights from Senior Advocate Kapil Sibal’s arguments, click here, here and here.

Looking for the detailed submissions of Senior Advocate Shyam Divan? Read the highlights from Day 1Day 2, Day 3, Day 4 , Day 5, Day 6 and Day 7 of the hearing.

Source:  twitter.com/SFLCin

Case BriefsHigh Courts

Karnataka High Court: While passing the interim order, the Division Bench held that there is no bar in law to Overseas Citizens of India cardholders, who are NEET UG 2017 qualified, to apply for management quota seats in the deemed Universities.

Petitioners claimed that they were eligible to be considered for admission under the management quota seats in the deemed Universities. The petitioners relied on the order of Karnataka HC passed in W.P. No. 23448/2017 dated 07.07.2017 and also the interim direction issued by the Supreme Court in W.P. No. 267/2017, dated 09.05.2017, regarding common counseling for admission to deemed Universities.

Learned counsel for the petitioners submitted that the Director General of Health Services was not permitting the petitioners to apply for management quota seats available in deemed Universities. Medical Council of India submitted that there is no bar in law for Overseas Citizens of India cardholders who are NEET UG 2017 qualified, to apply for available management quota seats.

The Court, after perusing the documents and submissions on behalf of the parties, held that the petitioners and similarly situated Overseas Citizens of India cardholders, who are NEET UG 2017 qualified, are eligible to apply for admission to I year MBBS/BDS course under the management quota seats in deemed Universities. [Aparna Macharla v. Union of India, W.P. Nos. 32330-32332/2017, dated August 01, 2017]

Hot Off The PressNews

Supreme Court: Staying the order of the MAdras High Court that stayed the declaration of results of NEET examination for admission in MBBS and BDS courses, the Court asked the CBSE to declare the result by June 26, 2017. The Court directed the authorities concerned to proceed with the process of declaration of results, subsequent counselling and admission as per the schedule fixed by it earlier.

The bench of P.C. Pant and Deepak Gupta, JJ also asked all the High Courts to refrain from entertaining any petition in matters relating to NEET examination 2017 that was conducted on 07.05.2017, as it affects the schedule of the examination.

The cancellation of the exam  and conduct of re-exam was sought due to alleged question paper leak. Madras High Court had, hence, on 24.05.2017, granted stay on the declaration of the result. The CBSE approached the Supreme Court for urgent hearing of the matter praying that it should be allowed to declare the result as the entire schedule of counselling and subsequent admission for medical courses through NEET has gone haywire.

Source: PTI

Hot Off The PressNews

Supreme Court refused urgent hearing of the plea seeking cancellation of National Eligibility-cum-Entrance Test (NEET) which was conducted on 07.05.2017. The Court said that since the matter was already being heard by the Madras High Court that has also ordered a stay on the publication of the result till 07.06.2017, there was no need to hear the matter urgently. The Court, however, asked the petitioner, an NGO named Sankalp, to mention the plea next week. The petitioner had sought for cancellation of the exam held on 07.05.2017 and conduct of re-exam due to alleged question paper leak.

Source: ANI

Case BriefsSupreme Court

Supreme Court: In the petition seeking quashing of admission notice issued by CBSE dated 31.1.2017 that stipulates the maximum age of 25 years as eligible candidates to undergo the NEET examination, the bench of Dipak Misra and A.M. Khanwilkar, JJ said that, prima facie, such an age limit could not have been determined by way of a notice on the basis of the instructions issued by the Medical Council of India and that it is appropriate to direct that all the desirous candidates will be allowed to fill up the forms on the online portal of the CBSE on or before 5.4.2017.

It was contended by the petitioners that in the absence of Regulations framed by the Medical Council of India with regard to the age limit, by issuance of a notice, the age limit could not have been determined and that there are students who, after graduation, are also desirous of taking NEET examination to become doctors.

Directing that the online portal shall be opened from today evening, the Court said that if the competent authority of the CBSE seeks any logistic support from the agencies for having additional centres in the District, the Collector of the concerned District or the Commissioner of the City whoever is the authority will extend all the support so that the forms are accepted and the examinations are held on the date fixed by making different centres available.

The Court further clarified that if any High Court has passed any order contrary to the present order, the CBSE shall be bound by the order passed by this Court as far as the cut-off date is concerned. However, no High Court in the country shall interfere with regard to any litigation pertaining to choosing/allocation of centres.

The matter will be taken up in the second week of July, 2017 for final hearing. [Rai Sabyasachi v. Union of India, 2017 SCC OnLine SC 303, order dated 31.03.2017]