Nilay Gupta vs Chairman Neet Pg Medical And … on 9 October, 2020


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Supreme Court of India

Nilay Gupta vs Chairman Neet Pg Medical And … on 9 October, 2020

Author: L. Nageswara Rao

Bench: L. Nageswara Rao, Hemant Gupta, S. Ravindra Bhat

                                                          1


                                                                                    REPORTABLE
                                     IN THE SUPREME COURT OF INDIA
                                     CIVIL APPELLATE JURISDICTION

                                         CIVIL APPEAL NO. 3345/2020




  NILAY GUPTA                                                                    ...APPELLANT(S)

                                                     VERSUS

  CHAIRMAN NEET PG MEDICAL AND
  DENTAL ADMISSION/COUNSELLING
  BOARD 2020 AND PRINCIPAL GOVT.
  DENTAL COLLEGE & ORS.                                                         ...RESPONDENT(S)



                                                      WITH

                                     CIVIL APPEAL NOS. 3346 - 3348/2020
                                        CIVIL APPEAL NO. 3349/2020
                                        CIVIL APPEAL NO. 3350/2020
                                     CIVIL APPEAL NOS. 3351- 3352/2020


                                                 JUDGMENT

S. RAVINDRA BHAT, J.

.1 These appeals were heard with the consent of learned counsel for the parties.

Signature Not Verified

Digitally signed by
GULSHAN KUMAR
ARORA
Date: 2020.10.09
16:52:33 IST
Reason:

2

.2 The appellants are aggrieved by a decision of a Division Bench of the
Rajasthan High Court, which upset the findings of a learned Single Judge of that
High Court, who found that the change of seat matrix for admission to post graduate
(PG) medical and dental seats in colleges in the State of Rajasthan, for the academic
year 2020-21, by eliminating the Non-Resident Indian (NRI) quota was
unsustainable in law. The appellants were admitted pursuant to the direction issued
by the learned Single Judge, who had ruled that the deletion of such quota was
contrary to law. Two sets of appeals and intervention applications arise for
consideration: one, appeals arising from petitions filed by Dr. Nilay Gupta, and Dr.
Surmil Sharma, the original writ petitioners (who had succeeded before the single
judge and were consequently given admission as NRI candidates) and two, appeals
filed by Dr. Arushi Mittal, Dr. Priyanka Sharma, Dr. Anjali Agarwal, Dr. Aditya
Punia, Dr. Varun Bhargava and Dr. Deepak Ramnani, who are aggrieved by the
impugned judgment inasmuch as the admissions they were granted pursuant the
single judge’s directions, despite not being parties to the original writ petition, have
now been overturned. An application to intervene has been preferred by Dr. Tirth
Jitendra Kumar Modi, who was granted admission to a PG course in the respondent
private college on 27.08.2020, after the impugned judgment was delivered; he has
paid the fees and attended classes so far.

3

.3 The factual matrix is that the process of admission to PG medical and dental
courses for academic year (AY) 2020-21 began sometime in early 2020. The
procedure for selection for admissions began with the NEET Post Graduate
Test/Common Eligibility Test, which was held in January, 2020. The
schedule/calendar for filling of the PG seats was made available online and also
published in leading newspapers. Contemporaneously, a meeting of the PG
Counselling board for admissions to MD/MDS course was held by the Chairman,
NEET PG Counselling board – 2020 (hereafter “board”). This meeting held on
17.03.2020, was attended by representatives of colleges, including private colleges as
well as officials of the State and Union Governments. The minutes, inter alia,
recorded as follows:

“The following is a brief record of discussions held and decisions taken
during the meeting.

1. The notification for NEET PG Medical Dental advertisement was
discussed finalized and approved.

2. The instruction booklet was discussed and finalized and on
direction it was decided to send it to Hon’ble Advocate General for
vetting.

3. The seat matrix and fees structure was obtained from all medical
dental colleges.

4. It was decided to send the instruction booklet along with seat
matrix and the fee structure information obtained from all the medical
dental college to the Government.

5. Seats remaining vacant, if any due to non availability of NRI
candidates in second round of counselling will be filled up as per merit
and choice of the candidates applying under 15% quota of the college and
fees as prescribed by the fee committee of the college.

Meeting ended with the vote of thanks.”
4

.1 The NEET PG 2020 examination had been held sometime in January, and the
results were declared on 31.01.2020. The appellants were registered under the NRI
category with the board for allotment of seats in the discipline of MD (Radio-
diagnosis) in Rajasthan, sometime in the third week of March 2020.

.2 The Instruction Booklet for State Medical & Dental PG Seats Allotments,
2020, which intimated the terms which applied to candidates stated inter alia that:

(a) NEET qualified candidates possessing a degree of MBBS/ BDS from colleges
situated in the State of Rajasthan, and all medical officers/ medical teachers
serving under the Government of Rajasthan are eligible to participate for
admissions in 50% of the total seats in private medical colleges;

(b) For the remaining 50% of the total seats in private colleges, all NEET
qualified candidates possessing an MBBS/ BDS degree from anywhere are
eligible to participate;

(c) There are 3 types of seats as per the Medical Council of India (MCI) –
government seats, management seats, and NRI seats. The responsibility for the
type of seats in the seat matrix lie with the concerned institution.

.3 The Instruction Booklet further stipulated, inter alia, that the seat matrix
would be announced in “due course”. The medical and dental colleges which offered
admissions, were to delineate the categories of seats as well as the respective fee to
be charged in accordance with prevailing laws, regulations etc. Clause 19 of the
Instruction Booklet required separate documents to be furnished for NRI candidates
in Proforma II and in the form of undertakings.

.4 The eligibility for filling NRI seats was spelt out in the following terms:
“Eligibility for NRI Seats
As per order no. F.5 (968)DME/LC/2018/1997 dated 29.04.2019 of Government of
Rajasthan, following will be the guidelines applicable for the admission in Under
5

Graduate/Post Graduate, Medical/Dental courses under NRI quota in all Private
and Government institutions of the State:

1. At least one of the parents of students should be an NRI and shall ordinarily
be residing abroad as an NRI; or

2. The person who sponsors the student for admission should be a first degree
relative of the student (i.e. real Brother/real Sister) and should be ordinarily residing
abroad as an NRI; or

3. If student is taken as a ward by some other nearest relative [as mentioned
below (i) to (v) such students also may be considered for admission provided the
guardian has bonafidely treated the student as a ward. For this following nearest
relative (NRI) of candidate, who should be ordinarily residing abroad as an NRI can
only be considered:

(I) Real Brother and sister of father i.e. real uncle and real aunt.

(ii) Real brother and sister of mother i.e. real maternal uncle and maternal aunt.

(iii) Father and mother of father i.e. grandfather and grandmother.

(iv) Father and mother of mother i.e. maternal grandfather and maternal
grandmother.

(v) First degree-paternal and maternal cousins.”

4. All NRI candidates shall submit a proof being sponsored as NRI/OCI/PIO in
the form of certificate issued by the Indian embassy/Ministry of external affairs,
Government of India for this purpose. In the absence of that certificate a duly
notarized undertaking executed by the sponsor and notarized by the Notary Public of
the foreign country where the sponsor resides being submitted by the sponsor, it be
treated as sufficient as to the factum of the residence of the sponsor.

6

5. An affidavit from the sponsor that he/she looks after such student and will
sponsor the entire course fee of the candidate.

(Refer requirement of additional documents for candidates applying for NRI seats
under ‘List of documents to be deposited at the time of reporting’, Page 11 and 12 of
the instruction booklet)

Priority
For admission under NRI Quota in Medical/Dental Courses in the colleges in the
State of Rajasthan, priority shall be given to the NRI with ancestral background of
the State of Rajasthan by own/parents/Grandparents resided in State of Rajasthan at
least for a period of 5 years at any time. The proof of residence will also be
applicable for the consideration priority for NRI Quota, for which document
(electricity/water bill/Documents of immovable property/Indian Passport/Ration
Card/Voter ID/Aadhaar Card etc.) to the effect for this criteria is required to be
submitted by ward of NRI (including PIO/OCI).

Firstly, allotments of NRI Quota seats shall be allotted to candidate having ancestral
background of the State of Rajasthan by own/parents/Grandparents resided in State
of Rajasthan at least for a period of 5 years. Later on remaining Vacant NRI seats
will be allotted/filled by the candidates of NRI belonging to other states.

For PIO/ OCI: Overseas Citizens of India (OCI), Persons of Indian Origin (PIO) are
allowed for admission under NRI Quota.”

8. On 11.04.2020 apparently, one of the respondents, i.e. Mahatma Gandhi
Medical College, Jaipur (hereafter “MGMC”), published its admission notification
which stated inter alia that the total MD seats offered were 144; that
7

NRI/management quota seats would be 22, (i.e. 15% of the total seats) and that other
than NRI/management quota seats, the other 50% would be state quota seats (of the
total, i.e. 72) and 50 seats were All India quota seats. The details of MD/MS seats
available in the MGMC were also shown in a tabular form. For MD (Radio
diagnosis), 1 seat was earmarked in the All-India 35% quota; 3 seats were set apart
for the state quota; and 2 seats were set apart for NRI/management quota seats. The
appellants had by then, furnished the requisite documents to claim admission in the
NRI quota sometime in early March itself.

9. The original notice spelling out the schedule for admissions, including
verification of documents etc. had fixed 30.03.2020 as the date for verification of
status of NRI applicants. This process was postponed on 10.04.2020, to 14.04.2020.
Before that date, however, on 13.04.2020, the State NEET PG Counselling board
published a seat matrix in which the NRI quota was shown as NIL. It transpired that
the MGMC had, in the meanwhile furnished a seat matrix to the State NEET Board
showing that there would be no separate seats earmarked for the NRI quota, and that
such NRI candidates would be considered for admission in the management quota.
The final seat matrix for PG medical allotments for AY 2020-21 – furnished by the
MGMC – was annexed to the reply filed by the board before the single judge. It
clearly showed that 22 seats were set apart as ‘management’ seats, and none were
shown as part of the management seats under the NRI quota. With respect to Radio
Diagnosis, the position was that out of a total of 6 seats, 1 was kept apart as
‘management quota’.

On 14.04.2020, a notification was issued by the board stating that the seat
matrix for the current year would not contain the NRI Quota. The said notification/
intimation read as follows:

“Office of the Chairman,
8

NEET PG Medical & Dental Amission/Counseling Board -2020 and
Principal, Govt. Dental College, Subhash Nagar, Behind T. B. Hospital, Jaipur,
Rajasthan
Phone: 0141-2280090

NEET PG MEDICAL & DENTAL ADMISSION/COUNSELING 2020
(Rajasthan State)

IMPORTANT INFORMATION
FOR
NRI CANDIDATES

14.04.2020
Seat Matrix (13.04.2020) available at the website (compiled on the basis of seats
information provided by respective colleges) does not have any NRI seat this year.
The candidates who have applied for allotment on NRI seats will accordingly be
considered based on their remaining eligibility criteria.

Chairman
NEET PD Medical & Dental Admission
Counseling Board-2020 and
Principal, Govt. Dental College, Jaipur

10. Feeling aggrieved, the two appellants, i.e. Dr. Nilay Gupta and Dr. (Ms) Surmi
Sharma (both of who had concededly applied as NEET qualified candidates for the
admission in the NRI seats) approached the Rajasthan High Court, contending that
the decision to do away with the NRI quota was arbitrary. They highlighted their
having received a notice on 10.04.2020 to be in readiness for online counselling
towards admission to the NRI seats. They relied upon the minutes of the meeting
dated 17.03.2020 and submitted that the the NEET Counselling Board was to first fill
the NRI seats in NRI quota, and if there were no left out seats, to fill them as part of
the larger management quota. It was also submitted that on 13.04.2020, the NEET
PG Counselling Bord whimsically and without any rationale, in its final seat matrix
deleted the NRI quota altogether following it up with a notification of 14.04.2020,
stating that all NRI seats would now be considered as part of the management quota.

9

The board and the MGMC resisted the writ petition, especially the appellants’ reliefs
claimed (that the respondents be directed to give them admission to seats as NRI
candidates). It was stressed by the respondents that no student has a right to claim
admission and that private medical colleges cannot be compelled to earmark a
separate quota for NRI candidates if they chose not to do so out of volition. It was
further stated that NRI candidates could and were considered for admission to seats
in the management quota.

11. By the judgment and order dated 10.07.2020, the learned Single Judge of the
High Court, relying upon the seven judges’ ruling of this Court in P.A. Inamdar &
Ors. v. State of Maharashtra1
, as well as other rulings2 held that after having
appeared in the NEET PG examination and qualifying it, and after having
approached the colleges (including MGMC) for the NRI seats, the appellants could
not be deprived of their choice of admission in NRI seats by the respondents through
the process of deletion of the NRI quota seats altogether. The learned Single Judge
held that there can be no distinction between the NRI seats and management seats
and it was only after exhausting the option of filling eligible NRI candidates in that
quota that the remaining seats in the 15% could be treated as management quota
seats. Relying upon the minutes of the meeting of 17.03.2020, which indicated the
sequence of admission (in which NRI students were to be first counselled for the
purpose of their document verification, after which management seats could be
filled), it was held that the change of policy mid-stream as it were, by the board and
the colleges was contrary to law. The learned Single Judge also directed that the
appellants, i.e. the writ petitioners before the High Court should be given admission
forthwith.

1

(2005) 6 SCC 537
2
Modern Dental College and Research Centre v. State of M.P & Ors.. 2012 (7) SC 433 and Manipal University v.
Union of India
(2017) 15 SCC 664.

10

12. In compliance with the directions of the single judge, the two appellants were
given admission to courses of their choice. Since the judgment had far reaching
repercussions, third party appeals were filed by students who had been offered
MD/MDS seats in the management quota, and who faced threat to their admission;
likewise, the board too appealed. The Division Bench allowed these appeals by the
impugned judgment, by accepting the plea of the colleges, the board and the third-
party appellants. The Division Bench reasoned that no student can claim a right to a
quota (NRI quota in this case). It also held that the judgments of this court in P.A.
Inamdar3 and the other decisions nowhere indicate that an obligatory NRI quota
should be earmarked by all private colleges, which have a choice of either doing it,
or filling the seats, which otherwise fall within the management quota, as part of the
management quota seats. In other words, according to the Division Bench, the
private institution has the choice of earmarking an NRI quota or not doing so, and
proceeding to fill the management quota by considering NRI students as part of the
general management seats quota. The impugned judgment also held that the
respondents could not be blamed for not providing an NRI quota, or for changing the
seat matrix; it further noted that the object of carving out a quota was to enable the
private institution to charge a higher fee; in the present case, it held that the fee
prescribed for NRI candidates and management quota candidates was the same;
therefore, the private colleges could well exercise their discretion not to earmark an
NRI quota.

13. Mr. V. Giri, learned senior counsel for the appellants argued that the action of
the board, in countenancing the MGMC’s decision to abolish the NRI quota, after
calling the students to opt for such quota, much after the declaration of NEET test
results on 31.01.2010, is arbitrary. It was urged that the entire sequence in this case,
shows that the board, the universities and the concerned colleges were clear that
there would be an NRI quota and that if seats from that quota, after the counselling,

3
Supra n.1
11

remained unfilled, only such residual seats would be filled up by management quota
candidates. Much emphasis was placed upon the minutes of the meeting dated
17.03.2020, under the aegis of the board, to which all colleges were parties. This
court’s attention was also drawn to the original seat matrix, published in the
notification dated 11.04.2020, of MGMC, which clearly represented that out of 144
seats in the MGMC, a clear 15% NRI quota was shown; and that the table even
detailed that two NRI seats in the Radio Diagnosis discipline for MD seats. Being so,
the board and the MGMC could not have gone back on their decisions, at a late
stage, when the students (who had opted for NRI seats in Rajasthan) were left with
little or no choice.

14. Mr. Siddharth Dave, learned senior counsel appearing for another candidate
who was prejudiced on account of the Division Bench’s directions, supported Mr.
Giri’s submissions. He highlighted that right from the decision in P.A. Inamdar4 this
court has maintained that an NRI quota is available for overseas/NRI candidates,
who wish to undertake studies in private colleges in India, especially in medical
courses. There is a twin objective behind creation of this quota: first, to augment the
coffers of the private college, and enable “cross-subsidization” of seats, for the
benefit of meritorious but poor students, and secondly, to enable students who have
been schooled abroad to culturally immerse themselves and find their roots in Indian
society. Such being the case, the managements of private colleges could not have
unilaterally and at the last moment, withdrawn this quota, to the detriment of the
students who had consciously opted for it, and were left with little, or worse, no
options. It was submitted that even the seat matrix shown last, i.e. on 13.04.2020,
should not have included management quota candidates as eligible for the NRI
quota; this aspect was noticed, and commented upon by the single judge, based on a
correct reading of the scheme of admissions.

4

Supra n.1
12

15. Mr. Wasim Qadri, learned senior counsel, Mr. Anand Verma and Mr. DK
Garg, learned counsel, made submissions on behalf of candidates. It was submitted
that as a result of the single judge’s directions, another round of counseling had taken
place and students were accommodated in the NRI quota; they had to give up the
seats which they had previously opted for, in other medical colleges, to accept NRI
seats, because that conformed to their choice of discipline. Hence, submitted these
counsel, the Division Bench’s ruling has resulted in adverse consequences to them.

16. Mr. Manish Singhvi, learned Additional Advocate General for the state of
Rajasthan, argued that the NRI quota could not apply in the facts and circumstances
of the case as the institutions (private colleges) had not claimed any seats under the
NRI quota, for which the seat matrices were furnished by them on 11.04.2020. The
allotment of seats was thus required to be made strictly in accordance with the merit
of the candidates who had applied in the NRI quota, as well as for the management
seats. It was urged that the learned Single Judge erred in usurping the powers of the
Counselling Board and directing it to allot particular subjects (Radio-diagnosis to Dr.
Nilay Gupta and Obstetrics & Gynaecology to Dr. Ms. Surmil Sharma).

17. Mr. Nakul Dewan, learned senior counsel appearing for the intervenor, Dr.
Modi, highlighted that due to disruption which occurred on account of the Covid-19
pandemic, the process for admission of PG courses was delayed; on 10.04.2020, the
revised schedule was issued by the board. When the private colleges had to furnish
their seat matrices to the board, they took a decision not to avail of the NRI quota.
Thus, the board published the seat matrix, which clearly indicated that 22 seats were
earmarked for candidates who had applied in the management quota category.
Agreeing with the submissions on behalf of the state, that an NRI quota was not
obligatory, Mr. Dewan contended that the genesis of that quota can be traced to the
observations in TMA Pai Foundation v. State of Karnataka 5 that unaided private

5
2002 (8) SCC 481
13

colleges are “entitled to autonomy in their administration” even when they are
bound to make merit-based admissions. The court had stated that a “certain
percentage” (of the total intake) can be set apart to be filled by college
managements, based on merit determined by a common test, to be conducted by the
state or its agencies, or the college. These observations were elaborated, and the
court enabled the creation of an NRI quota in such colleges, in P.A Inamdar6. He
also relied on the subsequent decision in Modern Dental College7.

18. Mr. Shiv Mangal Sharma, appearing for the fourth respondent, i.e. Dr.
Anjaneya Singh Kathait, in the appeal filed by Dr. Deepak Ramnani, supported the
submissions of Shri Dewan, and highlighted that all candidates who were granted
admissions in the NRI quota, after the single judge’s directions, were considerably
low in merit. They were given undeserving benefit, entirely because of erroneous
directions by the single judge, who could have at best required the board to consider
NRI candidates, on the basis of their merit, in the NEET process. It was submitted
that as a result, there was no question of interfering with the impugned judgment,
which was justified both on merits as well as in law. This position was also adopted
on behalf of the board, which is separately arrayed as respondent.

Analysis and Conclusions

19. The documents on the record show that a total of 717 seats were initially
notified for admission in postgraduate medical courses in government colleges in the
Rajasthan State; 427 of were notified as intake in five private colleges in the state.
The board, in its notification dated 10-04-2020 had stated that the rescheduling of
Central NEET Counselling for the state of Rajasthan had been re-notified; the fresh
schedule for the state indicated that counselling fee was to be deposited between
11.04.2020 and 13.04.2020. Concurrently the online registration for first counselling
and information for filing of applications by the candidates was between 11.04.2020
6
Supra n.1
7
Supra n.2
14

and 13.04.2020, up to 11.55 PM. The third and fourth steps comprised of verification
of disability certificate of all persons with disabilities as well as verification of status
of NRI applicants. Management quota seats were notified by MGMC on 13.04.2020;
these were 22 (out of a total of 144 seats available in that college.) During the
intervening period, the private colleges lodged their seat matrices; consciously, they
omitted the NRI quota. After publishing the matrix on 13.04.2020 and after the
board’s notification of 10.04.2020 (setting out sequentially, in terms of date and time,
the steps to be taken for registration counselling and admission), the final position
vis-à-vis unavailability of NRI seats was notified on 14.04.2020.

20. The provisions of the Rajasthan University of Health Sciences Act, 2005 8
throws open admission to all courses, offered by medical colleges affiliated to the
University, to be open to all, subject to such reservations as may be made in favour
of Scheduled Caste, Scheduled tribe, Other backward classes, girl students “and
other categories in accordance with any law or orders of the State Government for
the time being in force.” By virtue of insertion of Section 10-D in the Medical
Council of India Act
, 1956 and regulations framed thereafter, participation in a
common National Examination, (“NEET”) by institutions offering medical courses –
including postgraduation courses, as well as its attempt by candidates wanting
admission, became compulsory. The governing enactment, which set up the
respondent MGMC, is the Mahatma Gandhi University of Medical Sciences and
Technology, Jaipur Act, 2011. It provides9 for the procedure to be adopted for
admissions, as well as for reservations. Per proviso to Section 32(2), admission in

8
Section 7
9
Section 32, which reads as follows:

“32. Admissions. – (1) Admission in she University shall be made strictly on the basis of merit.
(2) Merit for admission in the University may be determined either on the basis of marks or grade obtained in
the qualifying examination and achievements in co-curricular and extra-curricular activities or on the basis of marks
or grade obtained in the entrance test conducted at the State level either by an association of the universities
conducting similar courses of by any agency of the State:

Provided that admission in professional and technical courses shall be made only through entrance test.
(3) Reservation in admission to the University for scheduled castes, scheduled tribes, backward classes,
special backward classes, women and handicapped persons shall be provided as per the policy of the State
Government.”
15

professional courses is to be only through entrance test; By Section 32(3),
reservations for “scheduled castes, scheduled tribes, backward classes, special
backward classes, women and handicapped persons shall be provided as per the
policy of the State Government.” Regulations framed pursuant to the amendment
effected in 2016, to the Medical Council of India Act, in respect of admission to
postgraduate medical courses, made it obligatory for both institutions and students
alike to give effect to the common eligibility test (NEET).10

21. The rival contentions of the parties may be summarized as follows. The
original writ petitioners, (all of whom are before this court) argue on the one hand
that the admission process really began sometime in January 2020 when the NEET
written test took place. The meeting convened by the board and attended by all
parties concerned including private colleges who participated in admissions to
postgraduate courses in private colleges, clearly intended as on 17.03.2020, to fill up
the 15% quota firstly amongst eligible NRI candidates and thereafter fill the leftover
seats as part of the management quota. This understanding resulted in two
consequences for NRI candidates; the first was that they filed their applications and
produced all relevant documents to support the claim that they were eligible for that
10
Regulation 9, to the extent it is relevant, introduced in 2018, reads as follows:

“9. Procedure for selection of candidate for Postgraduate courses shall be as follows:- (1) There shall be a
uniform entrance examination to all medical educational institutions at the Postgraduate level namely ‘National
Eligibility-cum-Entrance Test’ for admission to postgraduate courses in each academic year and shall be conducted
under the overall supervision of the Ministry of Health & Family Welfare, Government of India.

(2) The “designated authority” to conduct the ‘National Eligibility-cum-Entrance Test’ shall be the National
Board of Examination or any other body/organization so designated by the Ministry of Health and Family Welfare,
Government of India.

(3) In order to be eligible for admission to Postgraduate Course for an academic year, it shall be necessary
for a candidate to obtain minimum of marks at 50th percentile in the ‘National Eligibility-Cum-Entrance Test for
Postgraduate courses’ held for the said academic year. However, in respect of candidates belonging to Scheduled
Castes, Scheduled Tribes, and Other Backward Classes, the minimum marks shall be at 40th percentile. In respect of
candidates with benchmark disabilities specified under the Rights of Persons with Disabilities Act, 2016, the minimum
marks shall be at 45th percentile for General Category and 40th percentile for SC/ST/OBC. The percentile shall be
determined on the basis of highest marks secured in the All India Common merit list in National Eligibility-cum-
Entrance Test for Postgraduate courses.

Provided when sufficient number of candidates in the respective categories fail to secure minimum marks as
prescribed in National Eligibility-cum-Entrance Test held for any academic year for admission to Postgraduate
Courses, the Central Government in consultation with Medical Council of India may at its discretion lower the
minimum marks required for admission to Post Graduate Course for candidates belonging to respective categories and
marks so lowered by the Central Government shall be applicable for the academic year only.

(4) The reservation of seats in Medical Colleges/institutions for respective categories shall be as per
applicable laws prevailing in States/Union Territories. An all India merit list as well as State-wise merit list of the
eligible candidates shall be prepared on the basis of the marks obtained in National Eligibility-cum-Entrance Test and
candidates shall be admitted to Postgraduate Courses from the said merit lists only.”
16

quota; secondly with the publication of the board’s notification of 10.04.2020, some
of them (if not all of them) had applied as NRI candidates within the time indicated
in the rescheduled timeline. Thus, goes the argument, having held out to all NRI
candidates about the availability of seats for that quota as well as the sequence of
filling up those seats, at the penultimate hour, the board could not have decided
unilaterally or even permitted colleges unilaterally to withdraw the NRI quota seats
altogether. In support of their arguments two lines of authorities are cited: the first
are those judgements starting with P.A. Inamdar11 which hold that while private
educational institutions have the right to admit students of their choice, that right can
be regulated by law and that a quota for NRI candidates to the extent of 15% is
permissible. The second is the line of reasoning which says, typically in the context
of selection process for recruitment to public posts 12, that once the process begins,
there cannot be a change in the “rules of the game”, i.e. substantial change in the
matrix of consideration which adversely or irreversibly affects the prospects of
candidates who reposed their faith and expectations on the integrity of the procedure,
and its continuance till its completion.

22. The arguments of the state, the colleges and candidates (who were admitted to
the seats after the impugned judgment), on the other hand, is that P.A. Inamdar13 did
not carve out the NRI quota in stone. In other words, private educational institutions
including medical colleges, are not obliged to set apart such a quota, and that the
observations of this court in the said decision only enable the colleges or universities
to avail of that quota to the extent of 15%. In a given year, the management of the
private college may choose not to have any quota for NRI candidates; in the next
year, it may choose to have it but not to the extent of 15% and prefer to limit it to
5%; likewise, for the third year, depending on demand, the private college or
institution may provide for 15% NRI quota. It is hence argued that the decision of all
11

Supra n.1
12
K. Manjushree v. State of Andhra Pradesh & Anr., (2008) 3 SCC 512
13
Supra n.1
17

private colleges in Rajasthan not to avail of the NRI quota reservation or set apart,
and rather fill up the entire 15% from amongst those who had opted for management
seats, was justified. The counsel appearing for the private colleges urged that the
decision not to offer an NRI quota in medical colleges in the state of Rajasthan was
voluntarily and consciously taken, given the extraordinary and unusual situation
created by the pandemic. The explanation given by the colleges was that in their
assessment, NRI quota seats might not have been filled up to the normal expected
levels and in the circumstances, it was more appropriate to merge the seats
earmarked for NRI candidates with the management seats. The accommodation of
NRI quota candidates who had opted to be treated as such, in the admission process
was transparent and uniform in that all of them were considered on merits for the
management quota seats. Thus, there was no real prejudice suffered by such NRI
candidates. It was underlined by the candidates admitted pursuant to the impugned
judgement, that were the clock to be set back and the directions of the single judge
affirmed, they would be irreparably prejudiced. It was lastly argued that the single
judge could not have directed the admission of the petitioners who had approached
the High Court, regardless of their merit, even within the NRI quota.

23. It is undoubtedly a matter of record that on 17.03.2020, when the board
convened the meeting attended by representatives of all participating colleges
(including private medical colleges offering seats in the postgraduate medical
courses in Rajasthan), the unanimous thinking was to offer NRI/Management seats to
the extent of 15% of the total admission intake. This 15% turned out to be about 22
seats in MGMC. In the same meeting, it was unanimously decided that the task of
filling NRI seats would be taken up before filling the management seats; this meant
as a corollary, that NRI counselling would be taken up first and after allocation of
seats to suitable NRI candidates, the leftover seats would be filled by management
quota candidates. This was followed by the submission of forms by NRI candidates
for the purpose of verification of their documents. When the provisional seat matrix
18

was published on 10.04.2020, it did not indicate that those opting for admission
exclusively as NRI candidates would be considered as belonging to any other
category. It was only on 11.04.2020 that the private colleges appear to have sent their
final matrix to the board. This matrix, unbeknown to the NRI candidates, proposed
deletion of the NRI quota. In the circumstances, when the final matrix was published
for each college detailing the quotas for individual disciplines, the original
earmarking for NRI candidates was absent.

24. A plain reading of the judgement of this court in Inamdar14 reveals that a
provision for 15% NRI quota was a not compulsory; it was only potential. This is
clearly evident from the following passage in that judgment, which all counsel from
either side of the bar, insisted on reading:

“Here itself we are inclined to deal with the question as to seats
allocated for Non-Resident Indians (‘NRI’, for short) or NRI seats. It is
common knowledge that some of the institutions grant admissions to
certain number of students under such quota by charging a higher
amount of fee. In fact, the term ‘NRI’ in relation to admissions is a
misnomer. By and large, we have noticed in cases after cases coming
to this Court, neither the students who get admissions under this
category nor their parents are NRIs. In effect and reality, under this
category, less meritorious students, but who can afford to bring more
money, get admission. During the course of hearing, it was pointed out
that a limited number of such seats should be made available as the
money brought by such students admitted against NRI quota enables
the educational institutions to strengthen its level of education and
also to enlarge its educational activities. It was also pointed out that
people of Indian origin, who have migrated to other countries, have a
desire to bring back their children to their own country as they not
only get education but also get reunited with Indian cultural ethos by
virtue of being here. They also wish the money which they would be
spending elsewhere on education of their children should rather reach
their own motherland. A limited reservation of such seats, not
exceeding 15%, in our opinion, may be made available to NRIs
depending on the discretion of the management subject to two
conditions. First, such seats should be utilized bona fide by the NRIs
14
Supra n.1
19

only and for their children or wards. Secondly, within this quota, the
merit should not be given a complete go-by. The amount of money, in
whatever form collected from such NRIs, should be utilized for
benefiting students such as from economically weaker sections of the
society, whom, on well-defined criteria, the educational institution may
admit on subsidized payment of their fee. To prevent misutilisation of
such quota or any malpractice referable to NRI quota seats, suitable
legislation or regulation needs to be framed. So long as the State does
not do it, it will be for the Committees constituted pursuant to Islamic
Academy’s direction to regulate.”

(emphasis supplied)

Clearly, this court had the benefit of past experience with the concept of NRI
quota: witness its skepticism about filling of such seats (in the past) by undeserving
and unmerited candidates, to the detriment of more meritorious students. Therefore,
the court indicated a limited quota with some essential controls in the manner of
filling up of such NRI quota seats. These were:

a) The NRIs, who wish to bring their children to this country not only for their
education but also to get them reunited with the Indian cultural ethos by virtue of
being here and to enable the NRIs to expend money, (which they would be spending
elsewhere on education of their children) to reach their mother land.

b) Having pointed out the reality behind the incorrect or “misnamed” NRI quota and
found substance in the purpose behind allowing such quota, this court favoured a
limited reservation, not exceeding 15% of sanctioned seats, to be made available for
the NRIs, however, depending on the discretion of the management.

c) This court, however, imposed two conditions for admission under the NRI quota,
firstly, that such seats should be utilized bona fide by NRIs only and for their
children or wards and secondly, that within this quota, merit should not be given a
complete go by.

20

25. The four crucial elements in the NRI quota, per Inamdar15 are: one, the
discretion of the management (whether to have the quota or not); two, the limit
(15%); three, that seats should be available for genuine and bona fide NRI students,
and lastly that the quota was to be filled based on merit.

26. The board’s notification dated 10.04.2020 with respect to the sequence or
calendar of events, for the purpose of admissions to PG courses in medical colleges
in Rajasthan, on which much emphasis was placed, reads as follows:

15

Supra n.1
21

27. Earlier, the break of seats published on 17.03.2020, stated that 15% of the total
intake in PG medical courses were to be filled by NRI/management quota aspirants;
the sequence to be adopted undoubtedly clarified that in the order of things, the NRI
candidates’ applications would be considered first for counselling and admissions,
and the ‘left over’ seats would then be filled from amongst merited management
quota applicants, in addition to the 35% management seat candidates. The colleges,
however consciously decided not to go-ahead with the NRI quota – a decision, the
22

basis of which is explained as the assessment by such private colleges offering MD
courses, that there was a likelihood that many NRI seats would go unfilled.

28. Given that the decision in TMA Pai Foundation16 was by a larger bench of 11
judges, and PA Inamdar17 was a judgment delivered by seven judges, this court is
clear that precedentially, those and other previous judgements of this court, only
declared that as a part of the private colleges’ autonomous decision making, they
could set apart some percentage of seats for admission to students of their choice.
The Inamdar18 decision is important, inasmuch as it declared that the set apart (or
quota, so to say) for NRIs should be about 15% of the overall intake. Other decisions
of this court19 have underlined the paramountcy of the NEET requirement as a
common standard regulating medical courses’ admissions in India, irrespective
whether the courses are offered in publicly owned, state owned or privately owned or
managed institutions. A combined effect of the provisions of the Medical Council of
India Act
and regulations with respect to admissions (which have been progressively
amended in respect of eligibility for admission to courses, procedure for admission,
etc.) and the decisions of this court, is that private colleges and institutions which
offer such professional and technical courses, have some elbow room: they can
decide whether, and to what extent, they wish to offer NRI or management quotas
(the limits of which are again defined by either judicial precedents, enacted law or
subordinate legislation). In these circumstances, it is held that the respondent
management (of MGMC) possessed the discretion to indicate whether, and to what
extent, NRI reservations could be provided. As is evident, there is nothing in PA
Inamdar20 to say that a 15% NRI quota is an unqualified and unalterable part of the
admission process in post graduate medical courses. It was, and remains within the

16
Supra n.3
17
Supra n.1
18
Supra n.1
19
Modern Dental College & Research Centre (supra) and the recent decision in Christian Medical College
Vellore Association v. Union of India
, 2020 SCC OnLine SC 423
20
Supra n.1
23

discretionary authority of the management of private medical colleges, within their
internal policy making domain.

29. The impugned judgment, in this court’s opinion, is correct, in that it held that
the single judge could not have directed admission of the candidates before him.
There is a body of case law 21 which clarifies that sans a statutory duty, a positive
direction to do something in a specific manner, cannot be given (“it must be shown
that there is a statute which imposes a legal duty and the aggrieved party has a legal
right under the statute to enforce its performance.” 22). The NRI candidates could not
assert a right to be admitted; furthermore, while granting relief, the single judge
could at best have directed consideration of the cases of the writ petitioners before
him. However, the broad nature of the relief granted resulted in creation of rights
which, implicated parties had not in the first instance, approached the High Court
(unlike Dr. Nilay Gupta or Dr. Surmil Sharma), at the cost of third parties who had
by then been given admission based on their merit as management quota students,
another set of individuals who had not professed any grievance, were given
admission, post judgement of the single judge.

30. The preceding observations ought to have been dispositive of the present case.
Nevertheless, the court is of the opinion that the discretion of private managements
who set up and manage medical colleges cannot be left to such an untrammelled
degree as to result in unfairness to candidates. Undoubtedly, these private institutions
have the discretion to factor in an NRI or any other permissible quota. Yet that
discretion should be tempered; if the discretion to have such a quota is exercised, it
should be revised or modified reasonably, and within reasonable time. This case
presents some unusual features in that the admission calendar appears to have been
thrown out of gear on account of the Covid-19 pandemic. The NEET written test was
21
Tirumala Tirupati Devasthanams v. K. Jotheeswara Pillai, (2007) 9 SCC 461; Bihar Eastern Gangetic Fishermen
Coop. Society Ltd. v. Sipahi Singh
(1977) 4 SCC 145; K.V. Rajalakshmiah Setty v. State of Mysore, AIR 1967 SC 993.

22

Bihar Eastern Gangetic Fishermen Coop. Society Ltd. v. Sipahi Singh, (1977) 4 SCC 145.

24

held in January, and the results were declared on i.e. 31.01.2020. At that stage, and
soon thereafter till the end of March, the thinking of the colleges and the board
appears to be that the NRI quota in private medical colleges would be maintained
(evident from the minutes of meeting dated 17.03.2020). The rapidity with which the
pandemic progressed perhaps generated a broad consensus among private colleges
that going ahead with the NRI quota would be inadvisable. This court cannot
comment on the wisdom of such thinking as it falls within the exclusive domain of
private decision-making. What is striking however is that even when this thinking
was emerging, the original schedule, and the sequence for filling up of the NRI seats
was maintained – and even rescheduled. Thus, in terms of the board’s notification of
10.04.2020, the NRI students’ documents were to be verified on 14.04.2020.
Apparently, immediately a day after that notification, on 11.04.2020 to be precise,
the private colleges en masse appear to have decided not to proceed with the NRI
quota and instead ‘merge’ it with the 35% management quota seats, and proceed to
fill them entirely based upon rank based merit of the management quota candidates
arranged in terms of their ranking and performance in the NEET. NRI candidates
were to be treated as management quota candidates, and their applications too,
considered on the basis of their overall merit in that category. Viewed in isolation,
this decision is perfectly valid; it gives one the impression that NRI students were not
prejudiced. Undoubtedly, the decision to abolish the NRI quota was exclusively
within the scope of the private institutions’ decision-making. Yet what is apparent is
that by this time, the NRI students had not only started applying for counselling, but
had also submitted all their documents for verification to determine their eligibility
for the NRI quota seats, and in a sense, committed themselves as candidates for NRI
quota seats in Rajasthan for whatever perceived advantages they could reasonably
see in their favour. Hence, when the matter stood thus, when the final seat matrices
were published on 13.04.2020, it acted to the unfair detriment of these NRI students.

25

31. Noticeably, the writ proceedings initiated by the two candidates (Dr. Nilay
Gupta and Dr. Surmil Sharma) did not claim that it was representative in character. It
only sought to highlight the arbitrariness in the admission procedure and premised it
largely upon the violation of the mandate of this court in PA Inamdar23. As held
earlier, private medical colleges are not obliged to provide for such NRI quota seats
to the extent of 15% in any given year, but the peculiarities of this case, which are:
the prevailing pandemic, the various steps which impelled the NRI quota candidates
to commit themselves, and the eleventh hour policy change brought about through
the final matrix published on 13.04.2020, acted to the distinct disadvantage of these
NRI candidates. It also appears from the record that most of the students reconciled
themselves to their candidature being considered on merits at par with the
management quota candidates. Many such NRI students who did not approach the
court were given admission in disciplines other than their primarily choices, due to
their relative standing in the state merit list of NEET eligible candidates.

32. The directions of the single judge injected in an altogether different dimension
to the facts in directing that the writ petitioners before him be given admission, rather
than leaving it to the board. A pandora’s box of fresh claims appears to have been
opened up. This resulted in a so-called second round of counselling exclusively
meant for NRI candidates (in the second and third week of July, 2020), resulting in
the drawing up of an NRI quota list, which was then acted upon. The resultant
displacements led to those who had been given admission based upon the relatively
higher merit ranking in the management quota, approaching the Division Bench with
third-party appeals. The Division Bench set aside the single judge’s directions.
Another round of admissions to postgraduate seats was given to the third-party
appellants. It therefore falls upon this court to work out the most equitable manner of
ensuring that the least disturbance occurs in the particular circumstances of this case.

23

Supra n.1
26

33. As a result of the above discussion, it is evident that the NRI quota is neither
sacrosanct, not inviolable in terms of existence in any given year, or its extent.
However, if a medical college or institution or, for that matter, the state regulating
authority, such as the board in the present case, decide to do away with it, reasonable
notice of such a decision should be given to enable those aspiring to such seats to
choose elsewhere, having regard to the prevailing conditions.

34. In the circumstances of this case and to do justice to all the parties, this court is
of the opinion that a special counselling session should be carried out by the board,
confined or restricted to the seats in respect of which admissions were made pursuant
to the single judge’s directions. In this counselling session, the board should ensure
participation of the concerned colleges; the counselling shall be a limited one,
confined only to the number of seats offered and filled as a result of the single
judge’s judgment. Such seats shall be offered to the NRI applicants solely on the
basis of merit; the seats vacated by such merited students (in the other disciplines)
shall then be offered to the beneficiaries of the single judge’s orders. If for any
reason, such students (i.e. lower down in NRI merit, who are offered seats in other
disciplines) do not wish to take up the offer, the college concerned shall refund the
fee collected from such student. It is also made clear that this special round of
counselling should not disturb those admissions, where students had accepted the
deletion of the NRI quota, and were accommodated in the management quota, unless
they had approached the court at the earliest opportunity, in April 2020, before the
judgment of the learned single judge. The entire process shall be completed with a
week from the date of this judgment.

35. This court clarifies that the validity of deletion of the NRI quota altogether, by
colleges, and their “merger” as part of the larger management quota, was not
questioned as a general proposition; the premise on which the parties argued their
cases was that the NRI quota is inflexible and cannot be altered. The time within
27

which an institution decides to do away with the quota during an ongoing admission
process has not been prescribed, inasmuch as the observations as to unfairness in the
nature of the deletion is in the specific circumstances of this case. Likewise, the
directions in the previous paragraph are with regard to the circumstances of this case,
and to do complete justice to all parties.

36. The appeals and pending applications are disposed of in the above terms.

……………………………………………….J
[L. NAGESWARA RAO]

………………………………………………J
[S. RAVINDRA BHAT]

New Delhi,
October 9, 2020.



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