# NILAY GUPTA v. CHAIRMAN NEET PG MEDICAL AND DENTAL ADMISSION/

- **Citation:** [2020] 12 S.C.R. 161
- **Court:** Supreme Court of India
- **Decided:** 2020-10-09
- **Case number:** Civil Appeal No. 3345 of 2020
- **Bench:** L. Nageswara Rao, S. Ravindra Bhat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/nilay-gupta-v-chairman-neet-pg-medical-and-dental-admission-34518
- **Pages:** 28

## Headnote

Education/Educational Institutions:
Admission - To Post Graduate Medical and Dental Courses
- In Colleges in the State of Rajasthan - For academic year
2020-2021 - Change in seat matrix, eliminating NRI Quota and
merging the same with management quota - Challenged by two NRI
Candidates - Single Judge of High Court held elimination of NRI
Quota as unsustainable and directed admission of the candidates -
Admission of the candidates in NRI quota pursuant to the order -
Division Bench of High Court set aside the order of Single Judge -
Appeal to Supreme Court - Held: NRI quota is not an unqualified
and unalterable part of the admission process in post-graduate
medical courses - Management has the discretion to indicate
whether, and to what extent, NRI reservation could be provided -
However, while exercising such discretion, reasonable notice should
be given to those aspiring for such seats - Single Judge could not
have directed admission of the candidates - In the facts of the case,
the final seat matrices acted to the disadvantage of NRI candiates -
Therefore, in order to do complete justice to all the parties, it is
directed that a special counselling session be carried out, confined
only to number of seats filled as a result of Single Judge's judgment
- Such seats to be offered to the NRI candidates on merit basis -
The seats vacated by such merited students shall then to be offered
to the beneficiaries of the order of Single Judge - The special
counselling should not disturb those admissions where the NRI
candidates had accepted deletion of NRI quota and were
accommodated in management quota - Medical Council of India
Act, 1956.
[2020] 12 S.C.R. 161
161
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SUPREME COURT REPORTS
[2020] 12 S.C.R.
Disposing of the matters, the Court
HELD : 1.1 A combined effect of the provisions of the
Medical Council of India Act, 1956 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, the
respondent management possessed the discretion to indicate
whether, and to what extent, NRI reservations could be provided.
There is nothing in *PA Inamdar case, 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 discretionary authority of the management of private
medical colleges, within their internal policy making domain.
[Para 28][184-B-E]
1.2 Nevertheless, 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. [Para 30][185-C-D]
1.3 In the present case the admission calendar appears to
have been thrown out of gear on account of the Covid-19
pandemic. 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. When
the final seat matrices were published on 13.04.2020, it acted to
the unfair detriment of these NRI students. The NRI students
had not only started applying for counselling, but had also
submitted all their documents for verification to

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NILAY GUPTA
v.
CHAIRMAN NEET PG MEDICAL AND DENTAL ADMISSION/
COUNSELLING BOARD 2020 AND PRINCIPAL GOVT.
DENTAL COLLEGE & ORS.
(Civil Appeal No. 3345 of 2020 Etc.)
OCTOBER 09, 2020
[L. NAGESWARA RAO AND S. RAVINDRA BHAT, JJ.]
Education/Educational Institutions:
Admission - To Post Graduate Medical and Dental Courses
- In Colleges in the State of Rajasthan - For academic year
2020-2021 - Change in seat matrix, eliminating NRI Quota and
merging the same with management quota - Challenged by two NRI
Candidates - Single Judge of High Court held elimination of NRI
Quota as unsustainable and directed admission of the candidates -
Admission of the candidates in NRI quota pursuant to the order -
Division Bench of High Court set aside the order of Single Judge -
Appeal to Supreme Court - Held: NRI quota is not an unqualified
and unalterable part of the admission process in post-graduate
medical courses - Management has the discretion to indicate
whether, and to what extent, NRI reservation could be provided -
However, while exercising such discretion, reasonable notice should
be given to those aspiring for such seats - Single Judge could not
have directed admission of the candidates - In the facts of the case,
the final seat matrices acted to the disadvantage of NRI candiates -
Therefore, in order to do complete justice to all the parties, it is
directed that a special counselling session be carried out, confined
only to number of seats filled as a result of Single Judge's judgment
- Such seats to be offered to the NRI candidates on merit basis -
The seats vacated by such merited students shall then to be offered
to the beneficiaries of the order of Single Judge - The special
counselling should not disturb those admissions where the NRI
candidates had accepted deletion of NRI quota and were
accommodated in management quota - Medical Council of India
Act, 1956.
[2020] 12 S.C.R. 161
161
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SUPREME COURT REPORTS
[2020] 12 S.C.R.
Disposing of the matters, the Court
HELD : 1.1 A combined effect of the provisions of the
Medical Council of India Act, 1956 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, the
respondent management possessed the discretion to indicate
whether, and to what extent, NRI reservations could be provided.
There is nothing in *PA Inamdar case, 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 discretionary authority of the management of private
medical colleges, within their internal policy making domain.
[Para 28][184-B-E]
1.2 Nevertheless, 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. [Para 30][185-C-D]
1.3 In the present case the admission calendar appears to
have been thrown out of gear on account of the Covid-19
pandemic. 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. When
the final seat matrices were published on 13.04.2020, it acted to
the unfair detriment of these NRI students. The NRI students
had not only started applying for counselling, but had also
submitted all their documents for verification to determine their
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eligibility for the NRI quota seats, and in a sense, committed
themselves as candidates for NRI quota seats in Rajasthan.
[Para 30][185-E-F; 186-A-C]
1.4 Thus, 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. [Para 33][187-B-D]
1.5 The writ proceedings initiated by the two candidates
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 Inamdar case. Though 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 primary
choices, due to their relative standing in the state merit list of
NEET eligible candidates. [Para 31][186-C-G]
*P.A. Inamdar & Ors. v. State of Maharashtra (2005) 6
SCC 537 : [2005] 2 Suppl. SCR 603; Modern Dental
College and Research Centre v. State of M.P & Ors.
2012 (7) SC 433 : [2012] 5 SCR 768; Manipal
University v. Union of India (2017) 15 SCC 664; TMA
Pai Foundation v. State of Karnataka (2002) 8 SCC
481 : [2002] 3 Suppl. SCR 587; Christian Medical
College Vellore Association v. Union of India,
(2020) SCC OnLine SC 423 - referred to.
NILAY GUPTA v. CHAIRMAN NEET PG MEDICAL & DENTAL ADMISSION/
COUNSELLING BOARD 2020 & PRINCIPAL GOVT. DENTAL COLLEGE
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2.1 The Single Judge could not have directed admission of
the candidates. 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).
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 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. [Para 29][184-E-G; 185-A-C]
Tirumala Tirupati Devasthanams v. K. Jotheeswara
Pillai, (2007) 9 SCC 461 : [2007] 6 SCR 1; Bihar
Eastern Gangetic Fishermen Coop. Society Ltd. v.
Sipahi Singh (1977) 4 SCC 145 : [1978] 1 SCR 375 ;
K. V. Rajalakshmiah Setty v. State of Mysore, AIR 1967
SC 993 : [1967] SCR 70 ; Bihar Eastern Gangetic
Fishermen Coop. Society Ltd. v. Sipahi Singh, (1977) 4
SCC 145 : [1978] 1 SCR 375 - relied on.
2.2 The directions of the Single Judge resulted in a socalled 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 thirdparty 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. [Para 32][186-F-H; 187A-B]
2.3 In the circumstances of the present case and to do
justice to all the parties, it is directed that a special counselling
session should be carried out by the board, confined or restricted
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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 Single Judge. [Para
34][187-D-G]
2.4 It is clarified 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 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 the present case.
The directions are with regard to the circumstances of the present
case, and to do complete justice to all parties. [Para 35][187-GH; 188-A-B]
Case Law Reference
[2005] 2 Suppl. SCR 603
referred to
Para 11
[2012] 5 SCR 768
referred to
Para 11
(2017) 15 SCC 664
referred to
Para 11
[2002] 3 Suppl. SCR 587
referred to
Para 17
(2020) SCC OnLine SC 423
referred to
Para 28
NILAY GUPTA v. CHAIRMAN NEET PG MEDICAL & DENTAL ADMISSION/
COUNSELLING BOARD 2020 & PRINCIPAL GOVT. DENTAL COLLEGE
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SUPREME COURT REPORTS
[2020] 12 S.C.R.
[2007] 6 SCR 1
relied on
Para 29
[1978] 1 SCR 375
relied on
Para 29
[1967] SCR 70
relied on
Para 29
[1978] 1 SCR 375
relied on
Para 29
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3345
of 2020.
From the Judgment and Order dated 25.08.2020 of the High Court
of Judicature for Rajasthan Bench at Jaipur in DB Special appeal Writ
No. 499/2020 in S.B.Civil Writ Petition No. 5426 of 2020.
With
CIVIL APPEAL NOS. 3346 - 3348, 3349, 3350 & 3351- 3352
Of 2020.
Shyam Divan, Siddhartha Dave, V.Giri, Wasim A Qadri, Dr. Manish
Singhvi, P.S. Narasimha, Nakul Dewan, Sr. Advs, D.K. Garg, Pulkit
Manuja, Dhananjay Garg, Abhishek Garg, Anand Varma, Sandeep Singh
Shekhawat, Abhishek Prasad, Sanchar Anand, Vinay Kumar Misra,
Anant Kumar Vatsya, Devendra Singh, Ms. Udita Singh, Sandeep Kumar
Jha, Shiv Mangal Sharma, M/s. Aura & Co., Gaurav Sharma, Saransh
Saini, Anshul Sharma, Bhrigu Sharma, Puneet Parihar, M/S. Unuc Legal
LLp, Purvish Jitendra Malkan, Ms. Dharita Purvish Malkan, Ms. Deepa
Gorasia, Ms. Neha Ambastha, Ms. Bhavna Sarkar, Advs. for the
appearing parties.
The Judgment of the Court was delivered by
S. RAVINDRA BHAT, J.
1. These appeals were heard with the consent of learned counsel
for the parties.
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
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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. 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.
NILAY GUPTA v. CHAIRMAN NEET PG MEDICAL & DENTAL ADMISSION/
COUNSELLING BOARD 2020 & PRINCIPAL GOVT. DENTAL COLLEGE
[S. RAVINDRA BHAT, J.]
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[2020] 12 S.C.R.
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. 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.
5. 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.
6. 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.
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7. 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
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
NILAY GUPTA v. CHAIRMAN NEET PG MEDICAL & DENTAL ADMISSION/
COUNSELLING BOARD 2020 & PRINCIPAL GOVT. DENTAL COLLEGE
[S. RAVINDRA BHAT, J.]
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[2020] 12 S.C.R.
submitted by the sponsor, it be treated as sufficient as to the factum
of the residence of the sponsor.
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 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
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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,
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
NILAY GUPTA v. CHAIRMAN NEET PG MEDICAL & DENTAL ADMISSION/
COUNSELLING BOARD 2020 & PRINCIPAL GOVT. DENTAL COLLEGE
[S. RAVINDRA BHAT, J.]
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[2020] 12 S.C.R.
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. 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
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.
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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.
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 thirdparty 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.
3 Supra n.1
NILAY GUPTA v. CHAIRMAN NEET PG MEDICAL & DENTAL ADMISSION/
COUNSELLING BOARD 2020 & PRINCIPAL GOVT. DENTAL COLLEGE
[S. RAVINDRA BHAT, J.]
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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, 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 "crosssubsidization" 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
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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 Karnataka5 that unaided private 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
5 2002 (8) SCC 481
NILAY GUPTA v. CHAIRMAN NEET PG MEDICAL & DENTAL ADMISSION/
COUNSELLING BOARD 2020 & PRINCIPAL GOVT. DENTAL COLLEGE
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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 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.
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20. The provisions of the Rajasthan University of Health Sciences
Act, 20058 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 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
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."
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
NILAY GUPTA v. CHAIRMAN NEET PG MEDICAL & DENTAL ADMISSION/
COUNSELLING BOARD 2020 & PRINCIPAL GOVT. DENTAL COLLEGE
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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.