Dr. Atharv Tungatkar vs The Medical Consulting Committee on 10 June, 2022


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Supreme Court of India

Dr. Atharv Tungatkar vs The Medical Consulting Committee on 10 June, 2022

Author: M.R. Shah

Bench: M.R. Shah, Aniruddha Bose

                                                                  REPORTABLE

                               IN THE SUPREME COURT OF INDIA
                                 CIVIL ORIGINAL JURISDICTION

                              WRIT PETITION (C) NO. 409 OF 2022

         Dr. Astha Goel and Ors.                            …Appellant(s)

                                           Versus

         The Medical Counselling Committee & Ors.           …Respondent(s)

                                            WITH

                              WRIT PETITION (C) NO. 393 OF 2022

         Dr. Atharv Tungatkar and Ors.                      …Appellant(s)

                                           Versus

         The Medical Consulting Committee & Ors.            …Respondent(s)

                                            WITH

                         SPECIAL LEAVE PETITION (C) NO. 10395 OF 2022

         Dr. Nikhil Arora                                   …Appellant(s)

                                           Versus

         Union of India & Ors.                              …Respondent(s)

                                             AND

                         SPECIAL LEAVE PETITION (C) NO. 10539 OF 2022

         Dr. Khundongbam Chetan                             …Appellant(s)
Signature Not Verified

Digitally signed by
Jayant Kumar Arora
Date: 2022.06.10
14:55:20 IST
                                           Versus
Reason:




         Union of India & Ors.                              …Respondent(s)

                                              1
                                ORDER


M.R. SHAH, J.

1. As common question of law and facts arise in this group of writ

petitions/special leave petitions, they are being disposed of by this

common order.

2. For the sake of convenience, Writ Petition (C) No.409 of 2022-

Dr. Astha Goel and Ors. Vs. The Medical Counselling Committee & Ors.

is treated as the lead matter. By way of this writ petition being Writ

Petition No. 409 of 2022 under Article 32 of the Constitution of India, the

seven petitioners have prayed for the following reliefs:-

“a) Issue an Appropriate Writ, Order or Direction, in the
nature of a Writ of Mandamus, under Article 32 of the
Constitution to direct Respondent No. 1 to provide the
exact number of vacant seats after the conduct of stray
vacancy round of AIQ;

b) Issue an Appropriate Writ, Order or Direction, in the
nature of a Writ of Mandamus, under Article 32 of the
Constitution to direct Respondent No. 1 to conduct a
Special Stray Round of counselling to allow the
candidates to participate for the vacant seats which are
available after the conduct of stray vacancy round of
AIQ;

xxxxxxx”

2

3. In Writ Petition (C) No. 393 of 2022, one additional prayer is made

to issue an appropriate writ, direction or order directing the respondent

Nos. 1 and 2 – The Medical Consulting Committee and the Union of

India to revert the Medical P.G. seats remaining vacant after the AIQ

stray vacancy round as regards the admissions conducted pursuant to

NEET-PG-2021 examination to the State Quotas, for being allotted

through State Mop-Up Rounds.

4. The petitioners of Special Leave Petition (C) No. 10395 of 2022

and Special Leave Petition (C) No. 10539 of 2022 approached the

respective High Courts for the very reliefs, which are now sought in the

aforesaid writ petitions, namely directing the respondents to conduct a

Special Stray Round of counselling so as to allow them to participate for

the vacant seats, which are available after the conduct of stray vacancy

round of AIQ. By the impugned orders, the respective High Courts have

dismissed the writ petitions, hence the original writ petitioners have

preferred the present special leave petitions.

5. The dispute is with respect to the admissions for NEET-PG-2021.

Around 40,000 seats were available for NEET-PG examination, which

included the clinical as well as non-clinical seats. 92,000 candidates/

doctors were initially eligible for examination for the said seats.

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However, subsequently, the percentage was lowered by communication

dated 12.05.2022 and another 25,000 candidates became eligible.

5.1 The NEET-PG examination was conducted on 11.09.2021. The

result was declared on 28.09.2021. As per the earlier counselling

scheme, there were two rounds of counselling for All India Seats as well

as State Quotas seats respectively. However, as per the modified

counselling scheme, counselling is to be carried in four rounds and no

seats were to be reverted to States. These four rounds were AIQ Round

1, AIQ Round 2, AIQ Mop-up Round and AIQ Stray Vacancy Round.

5.2 That for NEET-PG-2021, Round 1 was held on 12.01.2022, Round

2 was held on 05.02.2022, Mop-Up Round was held on 14.04.2022 and

final Stray Round started on 28.04.2022 and ended on 07.05.2022. At

the end of the four rounds of counselling, each for All India Quota and

State Quotas (in all eight rounds of counselling) and thereafter one

another round of counselling was conducted, and still approximately

1456 seats remain vacant.

5.3 The respective petitioners, who earlier participated in all the

counsellings and could not get the admissions have now approached

this Court by way of present writ petitions/special leave petitions praying

for Special Stray Round of counselling with respect to the remaining

1456 seats remained vacant and to allow them to participate for the

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vacant seats, which are available after the conduct of the Stray vacancy

round of AIQ.

6. Ms. Rachna Shrivastava, learned Senior Advocate has appeared

on behalf of the writ petitioners of Writ Petition (C) No. 409 of 2022; Shri

A.D.N. Rao, learned Senior Advocate has appeared on behalf of the

petitioner in Special Leave Petition (C) No. 10395 of 2022; Shri Avijit

Mani Tripathi, learned counsel has appeared on behalf of the petitioner

in Special Leave Petition (C) No. 10539 of 2022 and Shri Kunal

Cheema, learned counsel has appeared on behalf of the writ petitioner in

Writ Petition (C) No.393 of 2022. Shri Balbir Singh, learned Additional

Solicitor General has appeared on behalf of the Union of India and Shri

Gaurav Sharma, learned counsel has appeared on behalf of the Medical

Counselling Committee as well as the National Board of Examinations.

7. Learned Senior Advocates/counsel appearing on behalf of the

respective petitioners have made following submissions in support of

their prayer to direct the respondents to conduct a Special Stray Round

of counselling with respect to the seats which have remained vacant:-

(i) Total 1456 seats have remained vacant for NEET-PG-2021,

wastage of 1456 seats still hamper the interest of both

colleges and the candidates;

(ii) The respective petitioners – candidates are ready to get

admission on any of the seats remained vacant;

5

(iii) Due to abrupt addition of additional seats in NEET-PG-2021,

an additional round of counselling for 146 seats was

conducted pursuant to the order passed by this Court. Apart

from this, the Mop-Up round was cancelled and was directed

to be reconducted. Therefore, the point of four counselling

cannot be brought when due to severe glitches additional

rounds were already conducted;

(iv) Out of 1456 seats remaining vacant, there are many seats,

which are clinical seats also. Therefore, it is not correct to

say that the seats, which have remained vacant are of

Paramedical courses;

(v) The seats which have remained vacant have remained

vacant due to the non-joining, resignation and the candidates

not reported. It is submitted that therefore, it was the duty

cast upon the respondents to fill up the posts remained

vacant due to the aforesaid grounds from and amongst the

remaining candidates;

(vi) It is the duty of the Medical Counselling Committee to have

conducted an additional round keeping in view the large

number of seats (1456) remaining vacant;

(vii) Closing of the software before filling of those seats itself is

not justifiable. Even if the software is closed, looking at the

gravity and urgency, a mechanism can be developed to fill in

the vacant seats;

6

(viii) That the submission on behalf of the Medical Counselling

Committee and the Union of India that the respective

candidates have already been refunded the amount cannot

be a ground not to conduct an additional round of

counselling;

(ix) The candidates for NEET-PG-2021 and 2022 are different.

Many candidates, who participated in the counselling for

NEET-PG-2021 did not even register for NEET-PG-2022 with

a hope that they will get a seat in the counselling.

Registration for NEET-PG-2022 has already been closed on

25.03.2022, giving no room to the candidates for NEET-PG-

2021 to appear for the NEET-PG-2022;

(x) The candidates cannot be replaced for NEET-PG-2021 and

NEET-PG-2022, 1456 seats can only be open for a merit-

based competition for NEET-PG-2021;

(xi) If the candidates like the petitioners are given the admissions

on the seats remaining vacant now, it may not affect their

education. Even the classes of NEET-PG-2021 started even

much before the first counselling batch started. That

thereafter and after the courses started, there are three Mop-

Up Rounds conducted and the students are given

admissions and the last admission was given on 07.05.2022.

The students, who are given admissions now will be able to

complete their full studies.

7
Making above submissions, it is urged and prayed to direct

the respondents to conduct a Special Stray Round of counselling

as a one-time measure and as a special case.

8. Present petitions/special leave petitions are vehemently opposed

by Shri Balbir Singh, learned ASG appearing on behalf of the Union of

India and Shri Gaurav Sharma, learned counsel appearing on behalf of

the Medical Counselling Committee. A counter is filed on behalf of the

respondent Nos. 1 and 3 – Union of India/ Director General of Health

Services.

8.1 It is vehemently submitted by Shri Balbir Singh, learned ASG that

in the present case, the dispute is with respect to the NEET-PG-2021

seats. It is submitted that in the present case, four rounds of counselling

each for All India Quota and State’s Quotas have been carried out and

out of 40,000 seats only 1456 seats have remained vacant after in all

nine rounds of counselling. It is submitted that out of 1456 seats

remaining vacant, approximately, 1100 seats are with respect to non-

clinical courses and the remaining seats are with respect to the private

colleges and with respect to the clinical courses. It is submitted that all

those seats have remained vacant, which usually remain vacant every

year as they are no takers and/or they can be said to be rejected seats.

It is submitted that all those seats remain vacant every year and, in

8
many cases, they are not opted by the concerned candidate as nobody

like to opt for non-clinical courses and even with respect to some of the

clinical courses, as there is a high fee in the private colleges, they are no

takers and therefore, some of the seats are remaining vacant every year.

It is submitted that therefore even after one additional round of

counselling is carried out as requested by the petitioners, in that case

also the seats are bound to remain vacant. It is submitted that there

cannot be endless exercise of conducting counseling one after another

till all the seats are filled in. It is submitted that after the nine rounds of

counselling when some of the seats have remained vacant and

considering the fact that the PG courses (clinical) is three-years course,

out of which, for whatever reason, more than one year had gone and

there cannot be any compromise so far as the Medical Education is

concerned and considering the fact that the admission process for

NEET-PG-2022 has already begun and the counselling for NEET-PG-

2022 is to begin/start in July, 2022, a conscious decision has been taken

not to conduct one another Special Stray Round of counselling.

8.2 It is further submitted on behalf of the Union of India and the

Medical Counselling Committee that the last round of counselling ended

on 07.05.2022. That thereafter, the entire software mechanism has

been closed and the security deposit has also been refunded to the

eligible candidates. It is submitted that a significant proportion of seats,

9
which remain vacant are in non-clinical courses and these are no taker

seats, which seats generally remain vacant. It is submitted that every

year, some number of seats remain vacant. It is submitted that the

identical question came to be considered by this Court in the case of

Education Promotion Society for India and Anr. Vs. Union of India

and Ors., (2019) 7 SCC 38. It is submitted that before this Hon’ble

Court, the petitioners prayed for general extension of time and prayed for

additional Mop-Up Round of counselling on the ground that a large

number of seats for PG courses were lying vacant. It is submitted that in

the said decision after taking note of the fact that every year, large

number of non-clinical seats remain vacant because many graduate

doctors do not want to do postgraduation in non-clinical subjects, it is

observed that merely because the seats are lying vacant is not a ground

to grant extension of time and grant further opportunity to fill up vacant

seats. It is submitted that in the aforesaid decision, it is observed that the

schedule must be followed and if the violation of schedule is permitted

and extension is granted, it will be opening a pandora’s box and the

whole purpose of fixing a time schedule and laying down a regime which

strictly adheres to the time schedule will be defeated.

8.3 Shri Gaurav Sharma, learned counsel appearing on behalf of the

Medical Counselling Committee and the National Board of Examinations

has also relied upon the earlier decision of this Court in the case of

10
Supreet Batra and Ors. Vs. Union of India and Ors., (2003) 3 SCC

370 in support of his submission that even if some seats remained

vacant, the students cannot be admitted mid-term.

8.4 Making above submission, it is prayed to dismiss the present writ

petitions/special leave petitions.

9. Heard the learned counsel appearing for the respective parties at

length.

10. At the outset, it is required to be noted that in the present case, the

dispute is with respect to the NEET-PG-2021 and the time schedule for

the approved counselling has been fixed pursuant to the direction issued

by this Court and/or approved by this Court. Ordinarily, the first round of

counselling in PG courses begins in the month of March of every

academic year and subsequently the academic session begins from the

month of May of every academic year. However, NEET-PG-2021

examination was delayed due to the third wave of COVID-19 pandemic

and various litigations across the nation implementing the 27% OBC

reservation in AIQ seats.

10.1 At this stage, it is required to be noted that as per the earlier

counselling policy, only two rounds of counselling were being held for All

India Quota seats and State Quotas. The modified scheme of

11
counselling for Academic Year 2021-2022 and onwards was submitted

before this Court in Special Leave Petition (C) No.10487 of 2021 and

this Court approved the same. As per the modified scheme of

counselling, this time four rounds of counselling have been undertaken

for All India Quota seats as well as States’ Quotas each. That thereafter

one another round of counselling was conducted pursuant to the

subsequent order passed by this Court, as approximately 146 seats

were added. The NEET-PG-2021 counselling commenced on

12.01.2022 and after completion of the four rounds of counselling for All

India Quota seats and State Quotas (in all eight rounds of counselling),

out of 40,000 seats, 1456 seats have remained vacant. It appears that

out of 1456 seats approximately more than 1100 seats are with respect

to the non-clinical courses and the remaining are with respect to the

clinical courses and all the seats are with respect to the private

institutions. The respective petitioners are claiming admission on the

remaining vacant seats and have prayed to direct the respondents to

conduct a Special Stray Round of counselling. The main submission on

behalf of the petitioners, as noted hereinabove, is that as large number

of seats have remained vacant, the same be filled in by conducting

additional/Special Stray Round of counselling for the seats remaining

vacant, which are mostly non-clinical courses, which remained even

after eight or nine rounds of counselling. The students cannot still pray

12
for admission on those seats remaining vacant after approximately one

year of academic session and remaining vacant after eight or nine

rounds of counselling.

10.2 At this stage, the decisions of this Court in the case of Supreet

Batra and Ors. (supra) and Education Promotion Society for India

and Anr. (supra) are required to be referred to.

In the case of Supreet Batra and Ors. (supra), it is observed and

held that even if some seats remain vacant, the students cannot be

admitted mid-term. In paragraph 7, it is observed and held as under:-

“7. When a detailed scheme has been framed through
orders of this Court and the manner in which it has to be
worked out is also indicated therein, we do not think that if in
a particular year there is any shortfall or a certain number of
seats are not filled up, the same should be done by adopting
one more round of counselling because there is no scope for
the third round of counselling under the Scheme. It would not
be advisable to go on altering the Scheme as and when
seats are vacant. What is to be borne in mind is that broad
equality will have to be achieved and not that it should result
in any mathematical exactitude. Out of about 1600 seats, if
200 seats are not filled up for various reasons and such not-

filled-up seats were much less in the earlier years, we do not
think it should result in the third round of counselling. If that
process is to be adopted then there will be again vacancies
and further filling up of the seats falling vacant will have to be
undertaken. In that process, it will become endless until all
the seats under the all-India quota are filled up. That is not
the object of the Scheme formulated by this Court. The
object was to achieve a broad-based equality as indicated by
us at the outset and we do not think that any steps have to

13
be taken for altering the Scheme. We have taken identical
view in the decision in Neelu Arora v. Union of India [(2003)
3 SCC 366] and connected matters disposed of on 24-1-
2003. Moreover, this Court in Medical Council of
India v. Madhu Singh
[(2002) 7 SCC 258] has taken the view
that there is no scope for admitting students midstream as
that would be against the very spirit of statutes governing
medical education. Even if seats are unfilled that cannot be a
ground for making mid-session admissions and there cannot
be telescoping of unfilled seats of one year with permitted
seats of the subsequent year. If these aspects are borne in
mind, we do not think any reliefs as sought for by the
petitioners can be granted under these petitions. These writ
petitions shall stand dismissed.”

10.3 In the case of Education Promotion Society for India and Anr.

(supra), the writ petitioners like the petitioners in the present case

prayed for extension of time schedule and prayed for the additional

counselling. This Court negated the same. This Court also took the

note of the fact that every year large number of non-clinical seats remain

vacant because many graduate doctors do not want to do

postgraduation in non-clinical subjects. Thereafter, it is observed and

held that merely because the seats are lying vacant, is not a ground to

grant extension of time and grant further opportunity to fill up vacant

seats. It is observed that the schedule must be followed. While holding

so, it is observed in paragraph 6 as under:-

“6. In this case the petitioners want a general extension of
time not on account of any particular difficulty faced by any
individual college or university but generally on the ground
that a large number of seats for the PG courses are lying

14
vacant. It is stated that more than 1000 seats are lying
vacant. In the affidavit filed by the UoI it is mentioned that as
far as deemed universities are concerned there are 603
seats lying vacant. However, it is important to note that out of
603 seats lying vacant only 31 are in clinical subjects and
the vast majority (572) that is almost 95% of the seats are
lying vacant in non-clinical subjects. There is no material on
record to show as to what is the situation with regard to the
remaining 400-500 seats. This Court however can take
judicial notice of the fact that every year large number of
non-clinical seats remain vacant because many graduate
doctors do not want to do postgraduation in non-clinical
subjects. Merely because the seats are lying vacant, in our
view, is not a ground to grant extension of time and grant
further opportunity to fill up vacant seats. The schedule must
be followed. If we permit violation of schedule and grant
extension, we shall be opening a pandora’s box and the
whole purpose of fixing a time schedule and laying down a
regime which strictly adheres to time schedule will be
defeated.”

10.4 Applying the law laid down by this Court in the aforesaid two

decisions to the facts of the case on hand and when the Medical

Counselling Committee and the Union of India have to adhere to the

time schedule for completing the admission process and when the

current admission of NEET-PG-2021 is already behind time schedule

and ever after conducting eight to nine rounds of counselling, still some

seats, which are mainly non-clinical courses seats have remained vacant

and thereafter when a conscious decision is taken by the Union

Government/the Medical Counselling Committee, not to conduct a

further Special Stray Round of counselling, it cannot be said that the

same is arbitrary. The decision of the Union Government and the

Medical Counselling Committee not to have Special Stray Round of

15
counselling is in the interest of Medical Education and Public Health.

There cannot be any compromise with the merits and/or quality of

Medical Education, which may ultimately affect the Public Health.

10.5 The process of admission and that too in the medical education

cannot be endless. It must end at a particular point of time. The time

schedule has to be adhered to, otherwise, ultimately, it may affect the

medical education and the public health.

10.6 Apart from the fact that after closure of the last round of

counselling on 07.05.2022, the entire software mechanism has been

closed and the security deposit is refunded to the eligible candidates, it

is to be noted that the admission process for NEET-PG-2022 has

already begun, the results for the NEET-PG-2022 has been announced

on 01.06.2022 and as per the time schedule, the counselling process is

going to start in July, 2022. Therefore, if one additional Special Stray

Round of counselling is conducted now, as prayed, in that case, it may

affect the admission process for NEET-PG-2022.

10.7 At the cost of repetition, it is observed and held that even after

eight to nine rounds of counselling, out of 40,000 seats, 1456 seats have

remained vacant, out of which approximately, more than 1100 seats are

non-clinical seats, which every year remain vacant, of which the judicial

16
notice has been taken by this Court in the case of Education

Promotion Society for India and Anr. (supra)

11. In view of the above and for the reasons stated above, the

petitioners are not entitled to any relief of writ of Mandamus directing the

respondents to conduct a Special Stray Round of counselling for filling

up the remaining vacant seats of NEET-PG-2021. Granting of such

relief now may affect the medical education and ultimately the public

health as observed hereinabove.

12. Under the circumstances, both these writ petitions and the special

leave petitions deserve to be dismissed and are accordingly dismissed.

However, in the facts and circumstances of the case, there shall be no

order as to costs.

………………………………….J.

                                             [M.R. SHAH]


NEW DELHI;                               ………………………………….J.
JUNE 10, 2022.                            [ANIRUDDHA BOSE]




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