Dr Dhananjaya Y Chandrachud, J
1 The Miscellaneous Application seeks revival of the petition under Article 32 of
the Constitution. The petition was disposed of by an order dated 14 March 2022.
2 The grievance in the petition was that there were vacant post graduate medical
seats and a reduction in the percentile fixed for eligibility will ensure that more
candidates become eligible to fill up the vacancies.
3 The Union Government in the Ministry of Health and Family Welfare1 took a
Sanjay Kumar
1 “MoH&FW”
off percentile has been fixed at 35, for the physically handicapped category at
30 and for the reserved SC/ST categories at 25.
4 Mr Prashant Bhushan, counsel appearing on behalf of the petitioners, submits
that even with the reduction which has been effected, there are still about 1,500
seats which are vacant in the states’ quota and, hence, if a further reduction of 5
percentile is effected, some more candidates would be able to gain admission.
Moreover, counsel submitted that in the previous year, there was a reduction of
20 percentile and hence a further reduction of 5 percentile for this year may be
considered because of the pandemic.
5 Ms Aishwarya Bhati, Additional Solicitor General, has tendered a statement on
behalf of MoH&FW, which is extracted in its entirety for convenience of
reference:
“Mop up Round
Total Seats Joined Vacant
6206 4,747 1459
Stray Round
Total Seats Allotted* Vacant
1459 1177 282**
*Results to be declared on 2nd May 2022. Last day of
reporting is 7th May 2022.
** Most of the seats that remain vacant are pre-para. These
subjects are teaching subjects and usually remain vacant.
There are currently 600 seats under counselling for the
deemed universities and the counselling would be completed
by 7th May 2022.
The petitioner has prayed for an additional round of mop-
up round to be conducted and to permit and facilitate the
petitioners/ applicants and also similarly situated to
participate in the NEET-PG Counselling 2021 and allot of the
vacant seats under the available quota for the academic year
2021-22, from amongst all candidates who appeared for the
NEET PG 2021 with no qualifying mark.
It is pertinent to mention that the current curriculum is
already 4 months behind schedule and the another round of
counselling is not in the best academic interest of the
students. Further, the Ministry of Health and Family Welfare
has decided in consultation with the National Medical
Commission has decided that there shall be a reduction
across all categories of 15 percentile for admission to the
NEET PG courses. Thus, for the general category, the cut-off
percentile is 35, for the physically handicapped general
category 30 and for the reserved SC/ST 25.
There are around 40,000 seats that are available for
NEET PG counselling. 92,000 candidates/doctors were initially
eligible for counselling for these seats. However, when the
percentile was lowered vide communication dated 12th May
2022, another 25,000 candidates became eligible. Therefore,
there are sufficient candidates that are available for
counselling for the vacant seats and further lowering of
percentile would not be in the interest of the public at large
because the doctors have to deal with life and death
situations and merit cannot given a complete go-by.”
6 The above statement indicates that initially 92,000 candidates were eligible for
counselling for nearly 40,000 seats which were available for the post graduate
courses. After the lowering of the percentile, 25,000 more candidates became
eligible. A total of 6,206 seats were available in the mop up round and after
4,747 candidates joined, 1,459 seats remained vacant. In the stray round, out of
1,459 seats, 1,177 seats have been allotted, leaving 282 seats vacant. This
data is for the all-India quota. The results are to be declared on 2 May 2022 and
the last date for reporting is 7 May 2022.
7 The data which has been placed on the record indicates that:
(i) A significant proportion of seats which remain vacant are in “pre-para
subjects”: these are teaching subjects where seats generally remain
vacant;
(ii) The current term is already behind schedule and a considered decision has
been taken to the effect that holding another round of counselling would
not be in the best academic interest of students; and
(iii) As a result of a reduction of 15 percentile which was already made on 12
March 2022, another 25,000 candidates became eligible and it may not be
in the best interest of medical education to effectuate a further reduction.
8 The counsel for the petitioners relied on the judgment of a two-Judge Bench of
this Court in Harshit Agarwal v. Union of India2, where the petitioners had
sought a direction to lower the minimum marks by 20 percentile in each
category for NEET-UG 2020 for admission to the BDS course. Allowing the writ
petition, the decision of the Central Government dated 30 December 2020 to not
reduce the minimum marks for admission to the BDS course was set aside on
the ground that it suffered from illegality and irrationality. This Court directed
that the vacant seats in first year BDS course for 2020-21 were to be filled after
reducing the percentile by 10 points. However, the circumstances were different
in that case. The Dental Council of India had recommended the lowering of the
qualifying cut-off percentile to the BDS courses for the year 2020-21. The
petitioners then submitted a representation to the Union Government seeking a
2 WP(C) 54 of 2021
reduction in the qualifying percentile based on the recommendation of the
Dental Council of India. Sub-Regulation (ii) of Regulation II of the Dental Council
of India, Revised BDS Course Regulations 2007 stipulates that the Central
Government in consultation with the Dental Council of India may at its
discretion, lower the minimum marks required for admission if a ‘sufficient’
number of candidates fail to secure the minimum marks. This Court in that case
was deciding on the limited question of whether the decision of the Union
Government to not reduce the percentile in spite of the recommendations of the
Dental Council of India was arbitrary. It was observed that the contention of the
Union of India that the percentile was not reduced because there were sufficient
eligible candidates was erroneous since it had not considered vital facts on the
ratio of seats available vis-à-vis eligible candidates:
“11. The stand of the Central Government is that there are seven candidates available for each seat and, therefore, there is no need to lower the minimum marks. This calculation of the first Respondent is without taking into account the fact that NEET (UG) 2020 is conducted for admission into different courses like MBBS, BDS, UG AYUSH and other medical courses. Admissions for UG AYUSH and other UG medical courses are included in the NEET for the first time from this year. That apart, it is clear from the letter of the Dental Council of India that NEET has been made mandatory for admission to AIIMS and AIIMS like institutions and ZIPMER. Hitherto, AIIMS and AIIMS like institutions and other institutions like ZIPMER were conducting their own separate entrance test. The total number of seats available for the academic year 2020-2021 for MBBS are 91,367, BDS are 26,949 and AYUSH are 52,720 making it a total of 1,71,036 seats. Whereas, the NEET qualified candidates are 7,71,500. The ratio of seats available vis-à-vis eligible students is 1 : 4.5 and not 7. The basis for the decision to not reduce minimum
marks that there are sufficient eligible candidates is
without considering the above vital facts. The decision
which materially suffers from the blemish of
overlooking or ignoring, wilfully or otherwise, vital
facts bearing on the decision is bad in law4. The
decision of the first respondent 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. 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”
9 The proviso to Regulation 9(3) of the Post-Graduate Medical Education
Regulations 2000 stipulates that the Central Government has the power to lower
the minimum marks for admission to PG courses in consultation with the
National Medical Commission when a sufficient number of candidates fail to
secure minimum marks. On 12 March 2020, the Central Government in exercise
of this power reduced the minimum marks in consultation with the National
Medical Commission. After the stray rounds were conducted on the reduction in
the percentile, only 282 seats are left vacant. The Union of India has taken a
considered decision to not reduce the minimum marks further. As submitted by
the respondent, the vacancy in the seats does not arise from non-fulfillment of
minimum marks but also from course preferences and college preferences of the
students. This Court would not be inclined to interfere unless there is a manifest
arbitrariness in the decision making process or in the decision. There is no
arbitrariness here. Responding to the vacancies, the Union Government took a
decision after due consideration, of reducing the percentile by 15. This Court
would not be justified in the exercise of the power of judicial review to direct a
further reduction of 5 percentile since that would be trenching upon the
academic/policy domain. The need for filling up vacant seats, which undoubtedly
is a matter of public interest has to be balanced with other considerations such
as ensuring that the batch of admitted students commences the course, the
standards of medical education are not diluted and uncertainty is not created by
ad-hoc reductions in the norms of eligibility. Hence, we find no merit in the
Miscellaneous Application. The Miscellaneous Application is dismissed.
10 In view of the disposal of the Miscellaneous Application, no orders are required to
be passed on the application for impleadment which is accordingly disposed of.
[Dr Dhananjaya Y Chandrachud]
[Surya Kant] New Delhi; May 02, 2022 -S-
Miscellaneous Application No.735/2022 in W.P.(C) No. 124/2022
NEPPALI SAI VIKASH & ORS. Petitioner(s)
VERSUS
UNION OF INDIA & ORS. Respondent(s)
Date : 02-05-2022 This application was called on for hearing today.
CORAM :
For Petitioner(s) Mr. Prashant Bhushan, Adv.
Mr. Ramesh Allanki, Adv.
Ms. Aruna Gupta, Adv.
Mr. Srinivas Rao Pachwa, Adv.
Mr. D. Rahuvawsy, Adv.
Mr. Syed Ahmad Naqvi, Adv.
Mr. Alig Raj, Adv.
Ms. Aruna Gupta, AOR
For Respondent(s) Ms. Aishwarya Bhati, ASG
Ms. Ruchi Kohli, Adv.
Mr. Aman Sharma, Adv.
Mr. G. S. Makker, AOR
Mr. Siddhant Buxy, Adv.
Mr. N. V. R. SSS Vara Prasad, Adv.
Mr. Neeraj Kumar, Adv.
M/S. Ramesh Allanki And Associates, AOR
UPON hearing the counsel the Court made the following
O R D E R
1 The Miscellaneous Application is dismissed in terms of the signed reportable
judgment.
2 In view of the disposal of the Miscellaneous Application, no orders are required to
be passed on the application for impleadment which is accordingly disposed of.