Case BriefsSupreme Court

Supreme Court: In a detailed judgment, the bench of Dr. DY Chandrachud and AS Bopanna, JJ has upheld the Constitutional validity of the reservation for OBC candidates in the AIQ seats for PG and UG  medical and dental courses and noticed that while an open competitive exam may ensure formal equality where everyone has an equal opportunity to participate, however, widespread inequalities in the availability of and access to educational facilities will result in the deprivation of certain classes of people who would be unable to effectively compete in such a system.

It is important to note that considering the urgent need to commence the process of Counselling, the Court had, on January 7, 2022, directed that counselling on the basis of NEET-PG 2021 and NEET- UG 2021 shall be conducted by giving effect to the reservation as provided by the notice dated 29 July 2021, including the 27 per cent reservation for the OBC category and 10 per cent reservation for EWS category in the All India Quota seats. Read here

Purpose of Reservation

The underlying rationale of the reservation policy that seeks to remedy the structural barriers that disadvantaged groups face in advancing in society. Reservation is one of the measures that is employed to overcome these barriers. The individual difference may be a result of privilege, fortune, or circumstances but it cannot be used to negate the role of reservation in remedying the structural disadvantage that certain groups suffer.

Special provisions (like reservation) enable disadvantaged classes to overcome the barriers they face in effectively competing with forward classes and thus ensuring substantive equality. The privileges that accrue to forward classes are not limited to having access to quality schooling and access to tutorials and coaching centres to prepare for a competitive examination but also includes their social networks and cultural capital (communication skills, accent, books or academic accomplishments) that they inherit from their family. The cultural capital ensures that a child is trained unconsciously by the familial environment to take up higher education or high posts commensurate with their family‘s standing. This works to the disadvantage of individuals who are first-generation learners and come from communities whose traditional occupations do not result in the transmission of necessary skills required to perform well in open examination. They have to put in surplus effort to compete with their peers from the forward communities.

On the other hand, social networks (based on community linkages) become useful when individuals seek guidance and advise on how to prepare for examination and advance in their career even if their immediate family does not have the necessary exposure. Thus, a combination of family habitus, community linkages and inherited skills work to the advantage of individuals belonging to certain classes, which is then classified as “merit” reproducing and reaffirming social hierarchies.

What is “merit”?

““Merit” is not solely of one‘s own making. The rhetoric surrounding merit obscures the way in which family, schooling, fortune and a gift of talents that the society currently values aids in one‘s advancement.”

Thus, the exclusionary standard of merit serves to denigrate the dignity of those who face barriers in their advancement which are not of their own making. However,

“While examinations are a necessary and convenient method of distributing educational opportunities, marks may not always be the best gauge of individual merit. Even then marks are often used as a proxy for merit. Individual calibre transcends performance in an examination. Standardized measures such as examination results are not the most accurate assessment of the qualitative difference between candidates.”

At the best, an examination can only reflect the current competence of an individual but not the gamut of their potential, capabilities or excellence, which are also shaped by lived experiences, subsequent training and individual character.

Hence, the meaning of “merit” itself cannot be reduced to marks even if it is a convenient way of distributing educational resources. When examinations claim to be more than systems of resource allocation, they produce a warped system of ascertaining the worth of individuals as students or professionals. Additionally, since success in examinations results in the ascription of high social status as a “meritorious individual”, they often perpetuate and reinforce the existing ascriptive identities of certain communities as “intellectual” and “competent” by rendering invisible the social, cultural and economic advantages that increase the probabilities of success.

For instance, if a high-scoring candidate does not use their talents to perform good actions, it would be difficult to call them “meritorious” merely because they scored high marks. The propriety of actions and dedication to public service should also be seen as markers of merit, which cannot be assessed in a competitive examination. Equally, fortitude and resilience required to uplift oneself from conditions of deprivation is reflective of individual calibre.

Hence. merit should not be limited to individual agency or but it should be envisioned as a social good that advances equality because that is the value that our Constitution espouses.

Whether after graduation, an individual is entitled to reservation on the ground that they belong to a class that suffers from social and educational backwardness?

The Court observed that it cannot be said that the impact of backwardness simply disappears because a candidate has a graduate qualification. Indeed, a graduate qualification may provide certain social and economic mobility, but that by itself does not create parity between forward classes and backward classes. In any event, there cannot be an assertion of over-inclusion where undeserving candidates are said to be benefitting from reservation because OBC candidates who fall in the creamy layer are excluded from taking the benefit of reservation. Thus, we find that there is no prohibition in introducing reservation for socially and educationally backward classes (or the OBCs) in PG courses.

Why is reservation for OBC candidates in the AIQ seats for UG and PG medical and dental courses constitutionally valid?

  • Articles 15(4) and 15 (5) are not an exception to Article 15 (1), which itself sets out the principle of substantive equality (including the recognition of existing inequalities). Thus, Articles 15 (4) and 15 (5) become a restatement of a particular facet of the rule of substantive equality that has been set out in Article 15 (1);
  • Merit cannot be reduced to narrow definitions of performance in an open competitive examination which only provides formal equality of opportunity. Competitive examinations assess basic current competency to allocate educational resources but are not reflective of excellence, capabilities and potential of an individual which are also shaped by lived experiences, subsequent training and individual character. Crucially, open competitive examinations do not reflect the social, economic and cultural advantage that accrues to certain classes and contributes to their success in such examinations;
  • High scores in an examination are not a proxy for merit. Merit should be socially contextualized and reconceptualized as an instrument that advances social goods like equality that we as a society value. In such a context, reservation is not at odds with merit but furthers its distributive consequences;
  • Articles 15 (4) and 15 (5) employ group identification as a method through which substantive equality can be achieved. This may lead to an incongruity where certain individual members of an identified group that is being given reservation may not be backward or individuals belonging to the non-identified group may share certain characteristics of backwardness with members of an identified group. The individual difference may be a result of privilege, fortune, or circumstances but it cannot be used to negate the role of reservation in remedying the structural disadvantage that certain groups suffer;
  • The scheme of AIQ was devised to allot seats in State-run medical and dental institutions in which students from across the country could compete. Providing reservation in the AIQ seats is a policy decision of the Government, which will be subject to the contours of judicial review similar to every reservation policy;
  • Clause 11 of the information bulletin specifies that the reservation applicable to NEET-PG would be notified by the counselling authority before the beginning of the counselling process. Therefore, the candidates while applying for NEET-PG are not provided any information on the distribution of seat matrix. Such information is provided by the counselling authority only before the counselling session is to begin. It thus cannot be argued that the rules of the game were set when the registration for the examination closed.

[Neil Aurelio Nunes v. Union of India, Writ Petition (C) No. 961 of 2021, decided on 20.01.2022]


*Judgment by: Justice Dr. DY Chandrachud


Counsels

For petitioners: Senior Advocates Arvind Datar, Shyam Divan and Anand Grover and AORs Charu Mathur, Vivek Singh, Subodh S. Patil

For Respondents: SG Tushar Mehta, ASG Nataraj, Additional Solicitor General, ASG Vikramajit Banerjee and Senior Advocates P Wilson, Mariarputham

Case BriefsSupreme Court

Supreme Court: Considering the urgent need to commence the process of Counselling, the bench of Dr. DY Chandrachud* and AS Bopanna, JJ, has directed that counselling on the basis of NEET-PG 2021 and NEET- UG 2021 shall be conducted by giving effect to the reservation as provided by the notice dated 29 July 2021, including the 27 per cent reservation for the OBC category and 10 per cent reservation for EWS category in the All India Quota seats.

The order came after the notice issued by the Directorate General of Health Services in the Union Ministry of Health and Family Welfare on 29 July 2021 was challenged by the doctors who appeared in the NEET- PG 2021 examination.

The notice implements a 27 per cent reservation for Other Backward Classes1 (non-creamy layer) and a 10 per cent reservation for the Economically Weaker Section, while filling up 15 per cent undergraduate and 50 per cent post-graduate All India Quota seats in pursuance of the National Eligibility cum Entrance Test. The notice takes effect from the current admission year, 2021-2022.

It was argued before the Court that there cannot be any reservation for the OBC and EWS category in the AIQ seats in NEET-PG and that the criteria for the determination of the EWS category notified by O.M 36039/1/2019 (OM 2019) was unconstitutional.

On 25 October 2021, the Union Government of its own accord deferred the counselling due to the pendency of the petitions. Thereafter, the Union Government filed an affidavit justifying the EWS criteria on 26 October 2021 stating that the criteria was adopted after due deliberation within the Ministry of Social Justice and Empowerment and all the concerned stakeholders.

The Union Government formed the Panday Committee on 30 November 2021 to review the criteria for identifying EWS. The Committee submitted its report on 31 December 2021. Thereafter, the Union Government filed an affidavit before this Court accepting the recommendations of the Committee including the recommendation that the existing criteria for identifying EWS be retained for the present admission year 2021-2022.

While the Supreme Court observed that the formulation of the reasons in the interim order on the EWS reservation would take some time, it upheld the validity of the OBC reservation in the AIQ seats in NEET-PG and NEET-UG and directed that the counselling be conducted in order to ensure that the admission process is not dislocated.

The Court further directed that,

  • The criteria for the determination of the EWS notified by OM 2019 shall be used for identifying the EWS category for candidates who appeared for the NEET-PG 2021 and NEET-UG 2021 examinations;
  • The validity of the criteria determined by the Pandey Committee for identification of EWS would prospectively for the future be subject to the final result of the petitions; and
  • The petitions shall be listed for final hearing on the validity of the EWS criteria as recommended by the Pandey Committee in the third week of March 2022.

[Neil Aurelio Nunes v. Union of India, 2022 SCC OnLine SC 21, decided on 07.01.2022]


*Judgment by: Justice Dr. DY Chandrachud

Counsels

For petitioners: Senior Advocates Arvind Datar, Shyam Divan and Anand Grover and AORs Charu Mathur, Vivek Singh, Subodh S. Patil

For Respondents: SG Tushar Mehta, ASG Nataraj, Additional Solicitor General, ASG Vikramajit Banerjee and Senior Advocates P Wilson, Mariarputham

Legal RoundUpSupreme Court Roundups

“It is no part of any judge’s duty to strain the plain words of a statute, beyond recognition and to the point of its destruction, thereby denying the cry of the times that children desperately need the assurance of a law designed to protect their autonomy and dignity, as POCSO does.”

-Justice S. Ravindra Bhat

Attorney General for India v. Satish2021 SCC OnLine SC 1076


TOP STORIES


Story of the Month

POCSO| “Touch”, “physical contact” can’t be restricted to “skin to skin contact”; “sexual intent” is the key. SC reverses Bombay HC’s “dangerous precedent” 

A 3-judge bench of UU Lalit, Bela Trivedi and S. Ravindra Bhat, JJ has set aside the Bombay High Court judgment that had acquitted the accused under Section 8 of the POCSO Act, 2012 on the ground that no direct physical contact i.e. skin to skin with sexual intent without penetration would not amount to ‘sexual assault’. 

Pushpa V. Ganediwala, J., of Bombay High Court’s Nagpur Bench had expressed that the act of pressing of the breast of the child aged 12 years, in the absence of any specific detail as to whether the top was removed or whether he inserted his hand inside top and pressed her breast, would not fall in the definition of ‘sexual assault’. The said judgment had caused a huge uproar in January 2021, especially since the “shocking” opinion came from a woman judge. 

When the matter reached before the Supreme Court, Justice Bela Trivedi, writing for herself and Justice UU Lalit, held that

“The most important ingredient for constituting the offence of sexual assault under Section 7 of the Act is the “sexual intent” and not the “skin to skin” contact with the child.” 

Read more… 


SC relief to death row convicts who killed 8 members of their brother’s family over property dispute; To serve LI for 30 years

“There is a bounden duty cast on the Courts to elicit information of all the relevant factors and consider those regarding the possibility of reformation, even if the accused remains silent.”

Read more…

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5-year-old raped, killed, thrown into a stream: SC commutes death sentence to life imprisonment

“There is no doubt that the appellant has committed an abhorrent crime, and for this we believe that incarceration for life will serve as sufficient punishment and penitence for his actions, in the absence of any material to believe that if allowed to live he poses a grave and serious threat to the society, and the imprisonment for life in our opinion would also ward off any such threat.”

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NEET| “Behind abstract number of ‘15 lakh students’ lie human lives”; SC asks NTA to rectify injustice caused to a “one-off” PwBD student

“Education plays a key role in social and economic inclusion and effective participation in society. Inclusive education is indispensable for ensuring universal and non-discriminatory access to education.”

Read more…

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Land Acquisition| Applying 2-year limitation period as per Section 11A of 1894 Act for passing award in pending cases under Section 24(1)(a) of the 2013 Act impractical

Practical absurdities and anomalies may arise if the two-year period for making of an award in terms of Section 11A of the 1894 Act commencing from the date of issue of the declaration is applied to the awards to be made under Section 24(1)(a) of the 2013 Act.

Read more…


EXPLAINERS 



MORE STORIES 


Contractual clauses cannot run contrary to legislative intent

“General phraseology of a contract cannot constitute agreement to apply statutory amendments retrospectively.”

Read more…

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Disinvesting of Hindustan Zinc Ltd.; SC smells irregularities in bidding process, directs full-fledged CBI enquiry in the matter

“There is a trend of poorly pleaded public interest litigations being filed instantly following a disclosure in the media, with a conscious intention to obtain a dismissal from the Court and preclude genuine litigants from approaching the Court in public interest.”

Read more…

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Section 138 NI Act| Can’t defeat the complaint merely because it does not elaborate upon Managing Director’s authorization

“It would be too technical a view to take to defeat the complaint merely because the body of the complaint does not elaborate upon the authorisation. The artificial person being the Company had to act through a person/official, which logically would include the Chairman or Managing Director. Only the existence of authorisation could be verified.”

Read more…

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Some out of five accused abscond; remaining can still be tried for dacoity

“Once it is found on evidence that five or more persons conjointly committed the offence of robbery or attempted to commit the robbery a case would fall under Section 391 IPC and would fall within the definition of ‘dacoity’.”

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National Security Act| Delay in considering representation; non-communication of rejection strike at the heart of fundamental rights of detenu

“Preventive detention in independent India is to be exercised with utmost regard to constitutional safeguards.”

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Merely having an explicit clause not sufficient to make time the essence of the contract

Whether time is of the essence in a contract’, has to be culled out from the reading of the entire contract as well as the surrounding circumstances.”

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Tamil Nadu’s loan waiver Scheme for small and marginal farmers upheld

The percentage distribution of the indebted agricultural households depicted the poverty that envelops the class of small and marginal farmers.

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Contractual bar on interest doesn’t only bar the parties from claiming it but also the Arbitrator from awarding it

“Once the contractor agrees that he shall not be entitled to interest on the amounts payable under the contract, including the interest upon the earnest money and the security deposit, the arbitrator in the arbitration proceedings being the creature of the contract has no power to award interest”

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Decreeing a claim while exercising jurisdiction under Section 37 of Arbitration and Conciliation Act 1996 impermissible

“While considering a petition under Section 34 of the 1996 Act, it is well-settled that the court does not act as an appellate forum. The grounds on which interference with an arbitral award is contemplated are structured by the provisions of Section 34.”

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‘Practically difficult to achieve absolute consistency in sentencing’ but here’s what the Courts should do

“It must be candidly acknowledged that there is an element of discretion present while adjudicating the issue of sentence, however, the same cannot be exercised in an unprincipled manner.”

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High Court cannot dismiss second appeal in limine without assigning any reasons

“Giving reasons for the conclusion is necessary as it helps the adversely affected party to understand why his submissions were not accepted.”

Read more…

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HC quashes proceedings based on “draft charge-sheet” yet to be placed before Magistrate! Clear abuse of S. 482 CrPC, holds SC

The High Court transgressed the scope of the powers conferred upon it by restricting the police from submitting the charge-sheet before the Magistrate and by further perusing the contents of the “draft charge-sheet” in the proceedings before it.

Read more…

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Not wise to shift burden of proof on accused merely because of rampant increase in henious crimes; SC acquits man in a 2009 dacoity case

“The acquittal of a guilty person constitutes a miscarriage of justice just as much as the conviction of the innocent.”

Read more…

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SC not pleased with Raj HC granting bail merely by “keeping in view the facts and circumstances of the case”; says Courts must record reasons

“The duty to record reasons cannot be obviated by recording submissions, followed by an omnibus “in the facts and circumstances” formula.”

Read more…

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Not open for Courts to usurp function of disciplinary authority; Can’t substitute one disciplinary punishment with other

“The scope of judicial review on the quantum of punishment is available but with a limited scope. It is only when the penalty imposed appears to be shockingly disproportionate to the nature of misconduct that the Courts would frown upon.”

Read more…

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Land Acquisition| Right under Section 5A of 1894 Act to stave off compulsory acquisition cannot be unjustifiably extinguished

“The authorities must remain alive and alert to the precious right created in favour of the citizens which is not meant to be a mere empty ritual.”

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‘Project Proponent not expected to anticipate changes in Environmental Clearance regimes’; SC protects already constructed buildings by Pune Developer

“A Project Proponent is not expected to anticipate the changes in Environmental Clearance (EC) regimes, especially as a result of judicial interventions, and keep revisiting the sanctioned clearances by the competent authority or even raze down validly constructed structures. Neither can it be expected to knock the doors of an authority, not empowered at the relevant time, to process its applications. Such a scenario would render the process akin to a Sisyphean task, eternally inconclusive and never ending.”

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‘Irregularity in cognizance order does not vitiate trial’; SC finds no “failure of justice” in cognizance by Special Judge in Karnataka iron ore illegal mining case

“For vitiating the proceedings, something more than a mere lack of authority has to be established.”

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SC allows sand mining in Bihar; says total ban gives rise to illegal mining; causes huge loss to public exchequer

“When legal mining is banned, it gives rise to mushroom growth of illegal mining, resulting into clashes between sand mafias, criminalization and at times, loss of human lives.”

Read more…

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Law abiding ex-employees cannot be put to disadvantage merely for vacating the quarters on notice; SC holds decision to grant quarters only to unauthorized occupants is illegal

“To allot the plots to those employees who were found to be in unauthorized occupation would tantamount to giving a premium to their illegality and remaining in occupation and possession of the quarters illegally and unauthorizedly.”

Read more…
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Military Services| “Much water has flown in the Ganges”; SC expresses dismay over appointments made from 1983 select panel after a lapse of 4-5 years

“No one has questioned their appointments…more than 34 years have rolled by and much water has flown in the Ganges and persons have later promoted to their promotional posts and few of them have retired.”

Read more…

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Written instruments entitled to much higher degree of credit than parol evidence; Old partnership deed clauses not superseded by new deed will continue to operate

“It would be inconvenient that matters in writing made by advice and on consideration, and which finally import the certain truth of the agreement of parties should be controlled by averment the parties to be proved by the uncertain testimony of slippery memory.”

Read more…

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Mere renumbering of case file by the NIA Mumbai does not take away power of the ATS to continue investigation; SC affirms HC’s decision in Bombay bomb blast conspiracy case

“Mere receipt and recording of such information (through an FIR) by itself does not mean that the investigation has also commenced. Rather, the investigation commences when the police takes the first step (of proceeding to the spot or collecting evidence or speaking to a witness or arresting the accused person) on the basis of such information.”

Read more…

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Lessee learns of cancellation of tender from Newspaper Report. SC holds authority can’t circumvent the requirement of providing effective hearing

“Natural justice is the sworn enemy of intolerant authority”

Read more…


CASES REPORTED IN SUPREME COURT CASES


An overview of the cases reported in the latest SCC Volumes

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2021 SCC Vol. 7 Part 3

2021 SCC Vol. 7 Part 4

2021 SCC Vol. 8 Part 1

2021 SCC Vol. 8 Part 2

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SCC Snippets on important law points 

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Using ‘promotion’ and ‘upgradation’ interchangeably? You won’t after reading this SC verdict

In Bharat Sanchar Nigam Ltd. v. R. Santhakumari Velusamy(2011) 9 SCC 510, the bench of RV Raveendran and Markandey Katju, JJ laid down principles relating to the promotion and upgradation.

Read more…

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Contract of Insurance vis-à-vis the requirement of uberrima fides

In Vikram Greentech (I) Ltd. v. New India Assurance Co. Ltd., (2009) 5 SCC 599, the bench of DK Jain and RM Lodha, JJ explained how a contract of insurance needs to be interpreted.

Read more…


Case BriefsSupreme Court

Supreme Court: In a case where a person suffering from Dysgraphia was denied compensatory time while appearing for National Eligibility cum Entrance Test (NEET), the bench of Dr. DY Chandrachud* and AS Bopanna, JJ has directed the National Testing Agency to the steps that can be taken to rectify the injustice within a period of one week. It said that NTA cannot hide behind the argument that ‘sixteen lakh students appeared for the NEET and hence injustice to a “one-off” student cannot be remedied’.

APPELLANT’S CASE

The appellant suffers from Dysgraphia, which is a specified disability listed in Entry 2(a) of the Schedule to the Rights of Persons with Disability Act 2016. She has been diagnosed with a 40 per cent permanent disability, falling within the statutory definition of a ‘person with benchmark disability’ under Section 2(r) of the RPwD Act 2016. As a person with disability, she is entitled to reasonable accommodation and certain relaxations. Among them is the benefit of “inclusive education” by a suitable modification to the examination system, as mandated by Section 17(i) of the RPwD Act, 2016. The guidelines for conducting “Written Examination for Persons with Benchmark Disabilities”, 2018 govern the examinations of all students covered by the RPwD Act 2016. They are to be followed by all examining authorities and educational institutions conducting regular or competitive examinations.

The appellant, who appeared for NEET, averred that the designated centre was ignorant of the grant of special facilities that had to be provided to PwD candidates and that towards the end of the scheduled duration of three hours, her answer sheet was “forcibly” collected together with the category of regular students appearing for the examination depriving her of compensatory time.

On 23 September 2021, the appellant moved a writ petition under Article 226 of the Constitution before the Bombay High Court, seeking a direction to NTA to hold a fresh examination for her while accommodating her with all relaxations and benefits to which she was entitled under the rules and regulations.

NATIONAL TESTING AGENCY’S CASE

The appellant has secured an All India Rank of 1721 out of 2684 candidates qualified in the PwD category. In relation to the State of Maharashtra, the appellant has secured rank 249 out of 390 candidates in the PwD category.

Approximately 15.4 lakh candidates appeared at the NEET (UG) 2021 on 12 September 2021 for which the result was declared on 1 November 2021 and the All India Rank was forwarded on November 2021 to the Ministry of Health and Family Welfare, Government of India to conduct counselling for admission. It was, hence, submitted that alteration of the result at this stage would prejudicially affect other candidates who are ranked above the appellant. It was argued that, sixteen lakh students appeared for the NEET and hence injustice to a “one-off” student cannot be remedied.

ANALYSIS

Not pleased with the submission of NTA, the Court said that it must remember that all authority under the law is subject to responsibility, and above all, to a sense of accountability.

“Behind the abstract number of ‘15 lakh students’ lie human lives that can be altered due to the inadvertent, yet significant errors of NTA.”

The Court said that as an examining body, NTA was bound to scrupulously enforce the Guidelines for Written Examinations dated 29 August 2018 which provides for specific relaxations.

The Court stated that since the appellant has suffered injustice by a wrongful denial of these relaxations, a lack of remedy by would cause irretrievable injustice to the life of the student. The RwPD Act 2016 prescribing beneficial provisions for persons with specified disabilities would have no meaning unless it is scrupulously enforced.

Holding that NTA cannot be allowed to simply get away when confronted with the situation in hand whereby injustice has been caused to a student by standing behind the situation of a large competitive examination, the Court said,

“Individual injustices originating in a wrongful denial of rights and entitlements prescribed under the law cannot be sent into oblivion on the ground that these are a necessary consequence of a competitive examination.”

RELIEF AND DIRECTIONS

  • The relief sought by the appellant for holding a re-examination for the NEET (UG) is denied;
  • The appellant was wrongfully deprived of compensatory time of one hour while appearing for the NEET without any fault of her own, despite her entitlements as a PwD and a PwBD. Accordingly, NTA is directed to consider what steps could be taken to rectify the injustice within a period of one week. Further, it shall take necessary consequential measures under intimation to the DGHS;
  • In the future, NTA shall ensure that provisions which are made at the NEET in terms of the rights and entitlements available under the RPwD Act 2016 are clarified in the NEET Bulletin by removing ambiguity;
  • Facilities which are provided by the law to PwD shall not be constricted by reading in the higher threshold prescribed for PwBD;
  • For the purpose of availing of the reservation under Section 32 of the RPwD Act 2016 or an upper age relaxation as contemplated in the provisions, the concept of benchmark disability continues to apply; and
  • The persons working for NTA and exam centres should be sensitised and trained, on a regular basis, to deal with requirements of reasonable accommodation raised by PwDs.

[Avni Prakash v. National Testing Agency, 2021 SCC OnLine SC 1112, decided on 23.11.2021]


Counsels:

For appellant: Advocate Rushabh Vidyarthi,

For NTA: Advocate Rupesh Kumar


*Judgment by: Justice Dr. DY Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

Case Briefs

Madhya Pradesh High Court: The Division Bench of Mohammad Rafiq, CJ. and Vijay Kumar Shukla, J., heard a writ petition which was filed Association of Private

Universities, Madhya Pradesh and Shri J.N. Chouksey, Chairman & Chancellor of one such Private University, challenging constitutional validity of Rule 2(13) read with Entry 3 and 4 of Schedule I of the Madhya Pradesh Medical Admission Rules, 2018 (Admission Rules of 2018) framed under Madhya Pradesh Niji Vyavsayik Shikshan Sanstha (Pravesh Ka Viniyaman Avam Shulk Ka Nirdharan) Adhiniyam, 2007 (the Act of 2007) as being violative of Articles 14 and 19(1)(g) of the Constitution of India and repugnant to Regulation 9 and other provisions of the Medical Council of India Postgraduate Education Regulations, 2000 (Regulations of 2000).

The members of the petitioner association claim the right to admit the meritorious students from the merit list prepared by National Eligibility-cum-Entrance Test (for short “NEET”).

Counsel for the petitioners argued that there cannot be 100% reservation on the ground of domicile residence in study course of higher levels in medical education, specifically for admission to postgraduate medical courses. He further submitted that giving preference on the basis of domicile leads to loss of excellence as also merit in the case of admissions to medical courses whether it is UG or PG. It was further submitted that the concept of ‘institutional reservation’ applies only in the same university or same college. Counsel for the petitioners argued that impugned clause giving preference to domicile student to the extent of 100% seats, completely eliminates competition with far more meritorious candidates from outside the State, runs foul of Article 14 of the Constitution of India. The ‘reasonable object’ which is sought to be achieved by making such an omnibus provision excluding competition, merit and excellence at the national level, besides being arbitrary, is highly discriminatory. The impugned clause results in complete freezing of seats in favour of candidates who are either domicile of M.P. or who have done their MBBS from the medical colleges of the State. Reservation in excess of 50%, howsoever laudable, is constitutionally impermissible and unacceptable. The impugned clauses 3 and 4 of Entry 3 are thus ultra vires Article 14, 19(1) (g) and 21 of the Constitution of India.

Government Advocate for the respondent-State at the outset raised preliminary objection with regard to maintainability of the writ petition at the instance of the

Association of Private Universities contending that no non-domicile candidate has ever raised any grievance as regards the impugned rule and, therefore, the Union of Private Universities/Private Medical Colleges can have no legitimate grievance with the impugned rule giving preference to the candidates domiciled in the State of Madhya Pradesh, as what they are concerned with is the allocation of the students and the fee which they charge. He further submitted that impugned provision clearly shows that there is no ‘wholesale reservation’ ‘regardless of merit’, much less on the basis of mere domicile of the State. There is no complete bar for admission of those candidates who are domiciled outside the State as they may participate in the first round itself if they have passed their MBBS/BDS examination from a medical/dental college situated in the State of Madhya Pradesh. As regard those who are not domiciled in the State or have not passed MBBS/BDS examination in the State, they are also eligible for admission but only from second round onwards in the event of non-availability of candidates from first two streams. It was submitted that the object of giving preference to the domicile and institutional candidates was to ensure that more of those candidates take admission in the PG/specialized courses in the State whose possibility to serve the people of MP after completing of their PG course is more.

The Court after the submissions, filtered that the primary question therefore would be whether under the impugned provision the State was competent to give priority to the students domiciled in the State of Madhya Pradesh including those who have passed out MBBS examination from anywhere in the State of Madhya Pradesh or would the provision for making such reservation or in other words, for identifying the source of admission was beyond its competence?

The Court relied on the judgment of the Constitutional Bench of the Supreme Court in Tamil Nadu Medical Officers Association v. Union of India, 2020 SCC OnLine 699 wherein it was authoritatively held that the Union cannot with reference to its power under Entry 66 List I of the 7th Schedule of the Constitution provide for anything with respect to reservation/percentage of reservation and/or even mode of admission in the State quota and that this power is conferred upon the States under Entry 25 List III of 7th Schedule.

After which the relevant question to be assessed was as to what extent such a reservation or source of admission, can be made in respect of the seats in postgraduate medical courses in the private medical colleges?

In view of the peculiarity attached to the impugned Admission Rules of 2018, the question that was required to be answered is as to what extent such preference on the basis of domicile can be given and whether the limit of 50% propounded by the Supreme Court in case of Dr. Pradeep Jain v. Union of India, (1984) 3 SCC 654 and in the subsequent judgments, for institutional preference, should also apply to preference given on the basis of domicile? This question directly fell for consideration of the Supreme

Court in Dr. Tanvi Behl v. Shrey Goel, (2020) 13 SCC 675 in which the Court noted the similar reservation/preference has been given in favour of domiciles by as many as 13 states, details of which have been enumerated in Para 11 of the report.

The Court stated that the contention of the Government advocate that the decision in Dr.Tanvi Behl does not apply for admission to the PG Medical study courses in private medical colleges as it only deals with the State quota seats in government medical colleges cannot be countenanced for the simple reason that neither the MCI Postgraduate Regulations, 2000 nor the Admission Rules of 2018 make any distinction between the seats of the State quota in government medical colleges and the seats in the private medical colleges.

Unlike the government medical colleges, private medical colleges are not required to part with 50% of the seats in favour of all India quota, but that by itself does not give any authority to private medical colleges to fill up those seats on their own. All the seats even in private medical colleges are required to be filled up as per the common counseling with reference to Clause 9A(3) of the MCI Regulations, 2000 in the same manner in which 50% seats of the State quota in the government colleges are filled, on the basis of common counseling under the overall superintendence, direction and control of the State Government.

The Court didn’t deem it appropriate to interfere with the impugned provision as question of law involved in the present matter has been already referred to the Larger Bench of the Supreme Court and further stated that decision of the question whether in view of Section 8 of the Act of 2007, the State Government is empowered to only provide reservation in favour of SC/ST/OBC and further whether the State can identify the source of admission from amongst candidates domiciled in the State of Madhya Pradesh, as a separate class, has to await the answer of reference by the Larger Bench in Dr.Tanvi Behl case and the decision of which shall be binding on the parties.[Association of Private Universities v. State of M.P., Writ Petition No.6509 of 2019, decided on 21-09-2021]


Suchita Shukla, Editorial Assistant has reported this brief.


For the petitioners: Shri Siddharth R. Gupta

Government Advocate for respondent 1& 2: Shri Bramhadatt Singh

For respondent 3: Shri Anoop Nair

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.