MAHA P. & ORS. versus THE STATE OF KERALA & ORS. on 18 May 2022

90

[2022] 4 S.C.R. 90

SUPREME COURT REPORTS[2022] 4 S.C.R. 90

[2022] 4 S.C.R.

MAHA P. & ORS.

A

v.

THE STATE OF KERALA & ORS.

(Civil Appeal No. 3654 of 2022)

BMAY 18, 2022

[DR DHANANJAYA Y CHANDRACHUD ANDBELA M TRIVEDI, JJ.]

Education/Educational Institutions: Medical admissions –NEET-UG in unaided private medical colleges in the State of KeralaC– Grant of time for fresh registration in the Non-resident Indianquota – Reservation of seats for the NRI quota in private medicalcolleges in the State of Kerala, if could be transferred to theunreserved category – On facts, out of the 358 NRI seats in theunaided private medical colleges in the State of Kerala, 300 seatsDwere filled up before the second allotment – About 57 seats in theNRI quota vacant – Writ petition filed seeking direction to granttime for fresh registration in the NRI quota seats before thecommencement of the mop-up counselling – Direction by the SingleJudge of the High Court to the Commissioner for EntranceExamination-CEE to consider the representation filed by theErespondent association – On consideration thereof, the CEE heldthat no further extension of time could be provided since candidateshad already been given sufficient time to apply for the NRI quota –Thereafter, few more students exercised their options and 47 NRIquota seats became vacant – Transfer of said 47 vacant NRI seatsFin private medical institutions by CEE to the general State quota forthe mop up round – Subsequently, dismissal of writ petition by theSingle Judge – Writ appeal there against also dismissed – Appealbefore this Court by the candidates, who qualified NEET exam andhad applied under the NRI category, but were not parties beforethe High Court – Held: Phrase ‘special reservation’ cannot be readGto include the NRI quota when the prospectus does not stipulate theNRI quota as a category of reservation under Clause 4 – Even if itis accepted that the NRI quota is a special reservation, theunoccupied seats can only be transferred to the mandatory quota-SEBC and EWS reservation seats – However, the CEE transferredH

the unoccupied NRI quota seats to State merit – Reasoning of theHigh Court that the respondent could transfer the unoccupied NRIquota seats to State merit by virtue of clause 5.5.4 is erroneous –However, since the appellants have not challenged the provisionsof the Information Bulletin which stipulate that the vacant NRI seatsshall be converted to unreserved seats during the mop-up round,the legality of such a conversion of seats cannot be decided – Also,the appellants have not contended that the rejection of therepresentation seeking extension of time to apply for the NRI quotaseats was malafide or arbitrary – In view thereof, the matter isdismissed.

Dismissing the appeals, the Court

HELD: 1.1 Clause 4.1.4 of the Prospectus defines ‘SpecialReservation’ as seats reserved for ‘specific categories, for certainspecific courses’. Clause 5.2 provides a list of special categoryreservations which include Ex-servicemen Quota, dependent ofDefence personnel killed/missing/disabled in action, servingDefence Personnel, CAPF, and Jewish quota. Furthermore,quotas specific to courses are also termed ‘special reservations’.Clause 4.1.5 which stipulates the breakup of reservation makesit evident that only vertical reservation as mandated by Article15, that is for the socially and educationally backward classesand economically weaker section of the unreserved category arebrought within the phrase ‘mandatory reservation’. Clause 5.5.4is broadly worded. Though the reservation for persons withdisabilities does not find a place in Clause 5.2 of the proposal,Clause 5.5.2 states that, unavailed seats of special reservation‘including PwD’ would be transferred to mandatory reservationquota. [Para 9][101-E-G; 102-A]

1.2 The Single Judge and the Division Bench of the HighCourt held that CEE can transfer the unavailed seats of the NRIquota to the State merit quota under Clause 5.5.4. The High Courtheld that Clause 5.5.4 was broadly worded to include the NRIquota within the meaning of ‘special reservation’. Clause 2.2states that the categorization of seats in self-financing collegesrun by institutions shall be notified separately. It also stipulatesthat the NRI seats in self-financing medical colleges shall beallotted by common counselling. Clauses 5.7 and 7.6(1) provide AB

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Ainformation on the documents required to be submitted underthe NRI quota. The phrase ‘special reservation’ cannot be readto include the NRI quota when the prospectus does not stipulatethe NRI quota as a category of reservation under Clause 4.Moreover, Clause 2.2 states that the categorization of seats inself-financing colleges shall be notified separately. Even if theBargument that the NRI quota is a special reservation is accepted,the unoccupied seats can only be transferred to the mandatoryquota (i.e. SEBC and EWS reservation seats). However, in thepresent matter, the CEE has transferred the unoccupied NRIquota seats to State merit. Therefore, the reasoning of the HighCCourt that the Respondent could transfer the unoccupied NRIquota seats to state merit by virtue of Clause 5.5.4 is erroneous.[Para 10][102-B-F]

1.3 The names of only 7 of the 37 Appellants find place inthe NRI category list which was published by CEE on 31 JanuaryD2022. The Respondent has submitted that of the 7 Appellantswhose names find place in the NRI category list, only 4 of themhad registered options for NRI seats. However, candidates whohad received a higher rank than them were allotted those seats.Further, it was also submitted by the Respondent that none ofthe 7 candidates registered their options for the 45 NRI seatsEthat were later converted to unreserved seats. The Respondentsubmits that only because none of the 7 candidates registeredtheir options concerning NRI seats, were the seats converted tounreserved seats to prevent the seats from lying vacant. [Para18][108-E-G]F

1.4 Since the Appellants have not challenged the provisionsof the Information Bulletin which stipulate that the vacant NRIseats shall be converted to unreserved seats during the mop-upround, present Court cannot decide on the legality of such aconversion of seats. The 4 Appellants who had registered theirGoptions for NRI seats had not exercised their options with respectto any of the vacant 45 NRI seats. The Respondents merelycomplied with the provisions of the Information Bulletin which isnot in challenge in the present proceedings. The Respondentassociation had only sought an extension of time for submissionof documents by candidates seeking to apply for the NRI quotaH

A

seats. The representation was rejected by CEE since sufficienttime and extension had been given for the submission of thedocuments. The Appellants have not contended that the rejectionof the representation was malafide or arbitrary. [Para 19][108-G-H; 109-A-B]

Modern Dental College & Research Centre v. State ofBMP (2009) 7 SCC 751 : [2009] 9 SCR 845; TMA PaiFoundation v. State of Karnataka (2002) 8 SCC 481 :[2002] 3 Suppl. SCR 587; PA Inamdar v. State ofMaharashtra (2005) 6 SCC 537 : [2005] 2 Suppl. SCR603; RD Gardi Medical College v. State of MP (2010)C10 SCC 225 : [2010] 12 SCR 692; TMA PaiFoundation v. State of Karnataka (1995) 5 SCC 220 :[1995] 2 Suppl. SCR 608; Modern Dental College andResearch Centre v. State of Madhya Pradesh (2012) 4SCC 707 : [2012] 2 SCR 685; TMA Pai Foundation v.State of Karnataka (1994) 4 SCC 728; AP(P)DEngineering College Management Association v.Government of AP (2000) 10 SCC 565 – referred to.

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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3654of 2022.

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From the Judgment and Order dated 08.04.2022 of the High Courtof Kerala at Ernakulam in W.A. No. 485 of 2022.

With

Civil Appeal No.3655 of 2022

H

A

Huzefa A. Ahmadi, Dushyant A. Dave, Sr. Advs., Haris Beeran,Mushtaq Salim, Usman Ghani Khan, Azhar Assees, Radha Shyam Jena,Ms. Pallavi Pratap, Advs. for the Appellants.

Jaideep Gupta, Sr. Adv., Nishe Rajen Shonker, Mrs. Anu K. Joy,BAlim Anvar, Sayid Marzook Bafaki, C. K. Sasi, Abdulla Naseeh V. T.,Ms. Meena K. P., Advs. for the Respondents.

The Judgment of the Court was delivered by DR DHANANJAYA Y CHANDRACHUD, J.C

1. These appeals arise from a judgment dated 8 April 2022 of aDivision Bench of the Kerala High Court, by which a writ petition seekinga direction to grant time for fresh registration in the Non-resident Indian[1]quota in NEET-UG in unaided private medical colleges in the State ofKerala was dismissed. At the core of the dispute is whether the seatsDreserved for the NRI quota in private medical colleges in the State ofKerala can be transferred to the unreserved category.

2. The National Testing Agency invited online applications forNEET-UG 2021-22 from 1 June 2021 to 21 June 2021. The last date forsubmitting applications was extended to 24 June 2021. A notificationwas issued on 25 June 2021 granting an opportunity to candidates toEmake corrections to their applications. The candidates were allowed torectify defects from 11 September 2021 to 17 September 2021. Twoextensions for the submission of documents were given. The Governmentissued orders permitting the NRI candidates to cure defects in attestationby 31 March 2022.F

3. The private institutions reserve 15% of the total seats for theNRI category. The unaided private medical colleges in the State of Keralahave a total of 358 seats in the NRI quota. The rank list of the eligibleNRI quota candidates in NEET-UG 2021-22 was exhausted after tworounds of counselling conducted by the Commissioner for EntranceGExamination[2]. However, even after the exhaustion of the NRI rank list,57 seats were vacant. The Kerala Private Medical College ManagementAssociation[3] made a representation to the CEE on 17 March 2022, 1 “NRI”

2 “CEE”

H3 “respondent association”

requesting the authority to invite fresh applications to fill up the vacantseats in the NRI quota on the ground that many students were unable tosubmit the required documents before the cut-off date due to the Covid-19 pandemic. A writ petition was instituted on 24 March 2022 seeking adirection to grant time to candidates to register for the NRI quota seatsbefore the commencement of the mop-up counselling. By an order dated29 March 2022, the Single Judge of the Kerala High Court directed theCEE to consider the representation filed by the respondent association.Pursuant to the judgment of the Single Judge, the respondent associationmade another representation to the CEE on 30 March 2022. The CEEconsidered the representation and by an order dated 31 March 2022held that no further extension of time could be provided since candidateshad been given sufficient time to apply for the NRI quota:

“During this year, the applicants had been given sufficient time toapply for NRI quota. After two phases of allotments there areabout 300 students remaining in the NRI category list and awaitingfor allotment. The mop up counselling process is going on and theallotment is scheduled to be published on 02.04.2022. As per MCIschedule, the admission to MBBS course has to be completedbefore 05.04.2022.

In these circumstances, it is not possible to invite fresh applicationsfor NRI quota. Hence, your demand in the representation couldnot be considered.”

The CEE transferred 47 vacant NRI seats in private medicalinstitutions to the general state quota for the mop-up round. The SingleJudge of the Kerala High Court dismissed the writ petition on 4 April2022 observing that:

(i) Out of the 358 NRI seats in the State of Kerala, 300 seatswere filled up before the second allotment. At the time ofthe filing of the writ petition, about 57 seats in the NRIquota were vacant. After the interim order dated 29 March2022, a few more students exercised their options. As ofdate, there are 46 vacant NRI quota seats;

(ii) Sufficient time was granted to the NRI quota candidates toexercise their options. The classes have commenced. Thelast date for admission is 5 April 2022; and A

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A(iii)The CEE would be at liberty to transfer vacant seats inaccordance with clause 5.5.4 of the Prospectus foradmission to Kerala Engineering, Architecture, and Medicalcourses[4]. There is no challenge to the prospectus. If anyfurther extension is granted for fresh registration, it woulddisrupt the academic schedule.B

4. The writ appeal against the judgment of the Single Judge wasdismissed by the Division Bench by its impugned judgment on 8 April2022 on the following grounds:

(i) Clause 5.5.4 of the Prospectus provides that the vacantCseats in the ‘special reservation’ category, including the quotafor persons with disabilities will be transferred to the‘mandatory reservation’ quota. Clause 5.5.4 is an inclusiveprovision that includes the NRI quota seats within the phrase‘special reservation’; and D(ii)The CEE need not seek the permission of the members ofthe respondent association before converting the vacant NRIseats as per clause 5.5.4 of the prospectus; and

(iii) The last date for admission to MBBS courses is 8 April2022. Therefore, time for fresh registration in the NRI quotaEcannot be granted. The NRI quota candidates were grantedsufficient time to exercise their options. The rank list waspublished on 24 December 2021. Thus, it can be assumedthat no eligible NRI candidate is available to exercise theoptions for the vacant seats.

F5. The appellants are candidates who have qualified in the NEETexam and had applied for the MBBS seats under the NRI category. Theappellants were not parties before the High Court. Mr Dushyant Daveand Mr Huzefa A Ahmadi, senior counsel appearing for the appellantsmade a three-fold submission: one, the NRI quota seats do not fall withinthe purview of ‘special reservation’ under clause 5.5.4 of the Prospectus.GThus, vacant NRI quota seats cannot be transferred; second, a three-Judge Bench of this Court in Modern Dental College & ResearchCentre v. State of MP[5], held that vacant NRI seats in unaided institutionscannot be transferred to the State following the earlier decisions of thiscourt; and third, the admission of the unreserved category candidates toH5 “Modern Dental College”, (2009) 7 SCC 751

the 46 NRI seats in the mop-up and stray vacancy counselling rounds iscontrary to law and thus stands vitiated.

6. Mr Jaideep Gupta, senior counsel appearing for the State ofKerala submitted that the representation of the respondent associationto the CEE for inviting fresh applicants for the NRI quota had beenrejected after due consideration. It was submitted that none of the 7appellants whose names found a place in the NRI list had exercisedtheir options with respect to the 45 vacant NRI seats that were transferred.Further, the senior counsel argued that the judgment of the three-JudgeBench in Modern Dental College (supra) is not applicable to the factsin the present case since the appellants had neither challenged theprospectus nor the information bulletin which stipulates that vacant NRIseats shall be transferred.

7. The State of Kerala submitted a status report on 23 April 2021pursuant to an interim direction of this Court. The status report states asfollows:

(i) Admission to various professional degree courses isconducted in terms of the Prospectus. By a notificationdated 31 May 2021, CEE invited online applications forprofessional degree courses from 1 June 2021 to 21 June2021. Clause 7 of the notification stipulates that thedocuments and certificates will have to be uploaded alongwith the online applications. Clause 7(iv) of the notificationstates that documents necessary for applying to the NRIquota will have to be submitted by the applicants. By aNotification dated 26 June 2021, the time for uploading theonline application was extended to 26 June 2021, and toupload the documents to 30 June 2021;

(ii) By a notification dated 30 October 2021, those who hadapplied for admission to MBBS and BDS courses, wereprovided a further extension of time from 30 October 2021to 8 November 2021 for uploading the documents. Thecandidates who had not claimed reservation, including underthe NRI quota for admission to medical/ allied courses wereagain granted an extension from 4 December 2021 to 10December 20201 for uploading the relevant documents. Onthe direction of the Admission Supervisory Committee, the A

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ACEE granted candidates applying under the NRI quota seats,one month’s time from the date of counselling or two daysbefore the second allotment for submitting attesteddocuments from the Embassy/Consulate. Therefore, theRespondent has provided sufficient time for the submissionof documents to candidates seeking to apply under the NRIBquota; A

(iii) For the academic year of 2021-22, 385 seats wereearmarked for the NRI quota in 19 private self- financingprivate colleges in the State. The CEE published a list of614 candidates in the NRI category;C

(iv) According to the Medical Council of India Guidelines,options exercised by the candidates for the Mop-up roundare to be considered final and will be used for filing up anystray vacancies that may arise. Due to a lack of optionsfiled by the candidates for the final phase of counselling, 45DNRI quota seats were converted to the ‘State Merit seats’for mop-up allotment;

(v) The Information Bulletin published by the MedicalCounselling Committee provides that the vacant seats haveto be converted during the Mop-up round. According to theEconversion algorithm mentioned in the Information Bulletin,the unavailed NRI seats have to be converted to theunreserved category. Therefore, given the procedureprovided under the Information Bulletin, the 45 NRI seatswere converted to State merit seats; F(vi)Only two vacant seats are available in Private MedicalColleges for MBBS courses in the State after the first strayvacancy round. A second round for stray vacancy allotmentwas published on 18 April 2022 to fill the two vacant seatsin the self-financing colleges. Among the two allottedGcandidates, one did not join the allotted college. Thus, oneseat is lying vacant in the All India Merit category in KarunaMedical College, Palakkad as of 20 April 2022;

(vii) According to the schedule of the Medical CounsellingCommittee, admission to the MBBS courses ought to havebeen completed by the second week of April 2022. FreshH

applications from the candidates for the NRI quota cannotbe invited when the counselling process is nearingcompletion; and

(viii) Of the 38 petitioners, the names of 7 candidates find a placein the NRI category list published by the Respondent. 12candidates were excluded from the final NRI category listdue to the lack of proper documentation and 19 candidatesdid not claim NRI quota seats at any stage of the admissionprocess. Of the 7 candidates, only 4 candidates hadregistered options for NRI seats in self-financing medicalcolleges. None of the candidates had provided the optionfor NRI seats during the mop-up round.

8. Clause 2 of the prospectus categorizes the seats in colleges.Clause 2.2 states that the categorization of seats in self-financing collegesrun by institutions under Government control and other private self-financing colleges will be notified separately:

“The categorization of seats in self-financing colleges run byinstitutions under Govt. control and other Private Self-financingcolleges will be notified separately. As per the orders of the Hon’bleSupreme Court of India dated: 09.05.2017 on WP(C) No. 267/2017, the allotments/admissions to the State Quota seats in all theGovernment as well as Private Self Financing Medical and Dentalcolleges shall be done through a Common Counselling to beconducted by the Commissioner for Entrance Examinations. TheCommon Counselling will include NRI seats in Self-FinancingMedical & Dental Colleges and Minority Community Quota seatsin Private Self Financing Medical & Dental Colleges havingMinority Status.”

Clause 4 of the prospectus provides a list of reservations. Clauses4.1.4 and 4.1.5 define ‘Special reservation’ and ‘mandatory reservation’respectively:

“[…]

4.1.1 (ii) Reservation for All India Quota for MBBS/BAMS/BSMS/BUMS Courses in Self-Financing Medical/Ayurveda/Sidda/Unani colleges:- ABC

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Fifteen percent of the seats for the admission of students toMBBS/BAMS/BSMS/BUMS Courses in Self-FinancingMedical/Ayurveda/Siddha/Unani Colleges in Kerala are setapart for the allotment of candidates irrespective of theirDomicile as per the rank list prepared by the Commissionerfor the Entrance Examinations on the basis of the rank obtainedin NEET-UG 2021 conducted by the National Testing Agency(NTA) New Delhi. See clause 4.1.11(a) and 4.1.13(a) &(b)

4.12 Reservation for Nominees: These are the seats set apartfor the nominees of the Government of India, Union Territoriesor other States for the various courses. [For details, referClauses 4.1.11 (b), 4.1.12, 4.1.13, 4.1.14, 4.1.15]

4.1.3 Reservation for Persons with Disabilities: Leaving theseats set apart under Clauses 4.1.1, 4.1.2 above, all types ofsupernumerary seats sanctioned, five percent of the seatsavailable for the state for allotment from the Entrance ranklists for all the courses in all the Government and Aided Collegesare reserved for the candidates with Benchmark disabilities[For details, refer Clause 5.3]

4.1.4 Special Reservation: These are the seats reserved forcertain specific categories, for different courses. [For details,refer Clause 5.2]

4.1.5 Mandatory Reservation: Leaving the seats set apart forAll India Quota, Government of India Nominees, Specialreservations, Persons with Disabilities, all types ofsupernumerary seats sanctioned and Management Quota, theremaining Government seats for each course in Govt./Aided/KAU/KVASU/KUFOS Colleges will be distributed as per themandatory reservation principle as contemplated in G.O (P)208/66/Edn. Dated 2.5.1966, G.O (Ms) No. 95/08/SCSTDDDated 06.10.2008, GO (Ms) No. 10/2014/BCDD Dated23.05.2014 and as modified from time to time.

The percentage break up of seats as per mandatory reservationis as follows:

(A) State Merit (SM)

-50%

(B) Economically Weaker Sections in General MAHA P. & ORS. v. THE STATE OF KERALA & ORS.[DR DHANANJAYA Y CHANDRACHUD, J.]

[…]

E

5.5.4 If any seat, in any special reservation quota including PwDquota, is left unavailed by the candidates to that particular category,it will go to the Mandatory reservation quota, unless otherwisestated.”

9. Clause 4.1.4 of the Prospectus defines ‘Special Reservation’as seats reserved for ‘specific categories, for certain specific courses’.Clause 5.2 provides a list of special category reservations which includeEx-servicemen Quota, dependent of Defence personnel killed/missing/disabled in action, serving Defence Personnel, CAPF, and Jewish quota.Furthermore, quotas specific to courses are also termed ‘specialreservations’. For instance, degree holders in MBBS and BHMS have aquota in BAMS course, degree holders in Ayurveda and Homeopathyhave a quota in the MBBS course, children of Agriculturists have aquota in BSc. (Hons.) Agri. Degree, and the children of Fishermen in F

G

6 “SEBC”

7 “EWS”

H

ABFSc. course. Clause 4.1.5 which stipulates the breakup of reservationmakes it evident that only vertical reservation as mandated by Article15, that is for the socially and educationally backward classes[6] andeconomically weaker section[7] of the unreserved category are broughtwithin the phrase ‘mandatory reservation’. Clause 5.5.4 is broadlyworded. Though the reservation for persons with disabilities[8] does notBfind a place in clause 5.2 of the proposal, clause 5.5.2 states that unavailedseats of special reservation ‘including PwD’ would be transferred tomandatory reservation quota.

10. The Single Judge and the Division Bench of the High Courtheld that CEE can transfer the unavailed seats of the NRI quota to theCState merit quota under Clause 5.5.4. The High Court held that Clause5.5.4 was broadly worded to include the NRI quota within the meaningof ‘special reservation’. The prospectus does not mention the NRI quotain chapter 4 which is titled ‘reservation of seats for various courses’.The only reference to the NRIs’ in the prospectus is in clauses 2.2, 5.7Dand 7.6(i). Clause 2.2 states that the categorization of seats in self-financing colleges run by institutions shall be notified separately. It alsostipulates that the NRI seats in self-financing medical colleges shall beallotted by common counselling. Clauses 5.7 and 7.6(1) provideinformation on the documents required to be submitted under the NRIquota. The phrase ‘special reservation’ cannot be read to include theENRI quota when the prospectus does not stipulate the NRI quota as acategory of reservation under Clause 4. Moreover, Clause 2.2 statesthat the categorization of seats in self-financing colleges shall be notifiedseparately. Even if the argument that the NRI quota is a specialreservation is accepted, the unoccupied seats can only be transferred toFthe mandatory quota (i.e SEBC and EWS reservation seats). However,in the present matter, the CEE has transferred the unoccupied NRI quotaseats to State merit. Therefore, the reasoning of the High Court that therespondent could transfer the unoccupied NRI quota seats to state meritby virtue of clause 5.5.4 is erroneous.G11. The Medical Counselling Committee issued the InformationBulletin and Counselling Scheme[9] for admission to medical courses in2021. Chapter 3 of the bulletin provides the process of admission for the 8 “PwD”H9 “Bulletin”

MBBS course in 100% deemed universities. The relevant portions ofthe bulletin are extracted below:

A

“ Chapter 3- 100% Deemed University

[…]

Reservation Policy:

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•Candidates who fall under the category of NRI as per thedirections/orders of the Hon’ble Supreme Court of India inthe case (W.P (C) No. 689/2017-Consortium of DeemedUniversities in Karnataka (CODEUNIK) & Anr. v. Unionof India & Ors.) dated 22-08-2017 are eligible for NRIcategory. OCI/PIO/Foreign Nationals candidates will beconsidered as NRI. OCI/PIO/Foreign Nationals Candidateswill only be eligible for NRI seats vide Ministry of HomeAffairs Gazette notification No. S.O.1050(E) dated 04[th]March 2021.

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[…]

JAIN MINORITY/MUSLIM MINORITY/NRICONVERSION: JAIN MINORITY/MUSLIMMINORITY/NRI seats remaining vacant during the Mop-Up rounds will be converted to Private Deemed UniversityEseats after the exhaustion of all eligible Jain Minority/MuslimMinority/NRI candidates to avoid wastage of seats.

��The conversion of seats will be carried out during the MopUp Round of Deemed Universities. The said conversionwill be done only when the eligible Candidates belonging toFthe said Conversion Category have exhausted.

CONVERSION ALGORITHM

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The information bulletin elaborates on the categorisation of seatsfor the NRI quota in deemed universities, the eligibility for the NRI quota Aand the conversion of unoccupied NRI quota seats to unreserved seats(that is, State merit seats).

12. In Modern Dental College (supra), petitions were filedchallenging the constitutional validity of the Madhya Pradesh NijiByavsayik Shikshan Sanstha (Pravesh Ka Viniyaman Avam Shulk KaBNirsharan) Adhiniyam 2007 and the Rules framed thereunder. This Courtheld that the provisions of the 2007 Act providing that the entire selectionprocess for admission to UG and PG medical courses and fee fixationshall be done by the State Government is contrary to the principles laiddown by the eleven-Judge Bench in TMA Pai Foundation v. State ofKarnataka[10] and PA Inamdar v. State of Maharashtra[11]. However,Cthis Court issued an interim order for admission to the medical seats inunaided colleges for the academic term of 2009-10:

“We, therefore, direct that the admissions in the private unaidedmedical/dental colleges in the State of Madhya Pradesh will bedone by first excluding 15% NRI seats (which can be filled up byDthe private institutions as per para 131 of Inamdar case [(2005)6 SCC 537] ), and allotting half of the 85% seats for admission tothe undergraduate and post-graduate courses to be filled in by anopen competitive examination by the State Government, and theremaining half by the Association of the Private Medical and DentalEColleges. Both the State Government as well as the Associationof Private Medical and Dental Colleges will hold their own separateentrance examination for this purpose. As regards “the NRIseats”, they will be filled as provided under the Act and theRules, in the manner they were done earlier.”

(emphasis supplied)

F

A dispute arose over the unfilled seats in the 15% seats that areset aside for NRIs’. In RD Gardi Medical College v. State of MP[12],10 NRI quota seats in the petitioner-college were unfilled. The HighCourt held that the unfilled NRI seats have to be shared between theGState and the petitioner-college in equal proportion. This Court dismissedthe appeal against the judgment of the High Court observing that theorder was in compliance with the judgment in Modern Dental College 10 (2002) 8 SCC 48111 (2005) 6 SCC 537H12 (2010) 10 SCC 225

(supra) where it was directed that the NRI seats be filled “as providedunder the Act and the Rules, in the manner they were done earlier.’Since Rule 8 of the Admission Rules 2008 stipulated that the vacantNRI seats shall be merged into the general pool, it was held that thevacant NRI seats were filled up in accordance with the judgment inModern Dental College (supra):

“28. A plain reading of the above leaves no manner of doubt thatunfilled NRI seats had to be transferred to the general pool to befilled up on the basis of the merit of the candidates in the State-level common entrance test conducted by the Madhya PradeshVyavsayik Pariksha Mandal or by any other agency authorisedby the State Government for that purpose. The unfilled seats inthe NRI quota were, therefore, to be treated as a part of thegeneral pool and once that was done the share of the College interms of the order passed by this Court would be 50% out of thesaid seats. The High Court has, in that view, rightly held that whilethe management was justified in filling up 5 unfilled seats in NRIquota, the remaining 5 could not have been filled up otherwisethan on the basis of the entrance test referred to in Rule 8.”

13. In view of the observations in RD Gardi Medical College(supra), IAs were filed for modication/clarification of the orders passedby the two-Judge Bench in Modern Dental College (supra) and RDGardi Medical College (supra). This Court noted that there is a conflictbetween the observations in para 28 of the judgment in RD GardiMedical College (supra) and para 27(1) of TMA Pai Foundation v.State of Karnataka[13]. In TMA Pai (supra), it was observed that thecollege shall admit students in the order of merit in the vacant NRI quotaseats. Therefore, the matter was referred to a larger Bench. However,the larger Bench could not resolve the apparent conflict before theadmissions for the academic year 2011-12 were to begin.

14. The same issue of transfer of vacant NRI seats arose in theacademic year of 2012-13. A two-judge Bench by an order dated 9December 2011 had directed that the matter be placed before a 13 (1995) 5 SCC 220

14 (2012) 4 SCC 707, “Modern Dental College and Research Centre”

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AConstitution Bench. However, since the matter was not likely to be heardby a Constitution Bench shortly, a three-Judge Bench in Modern DentalCollege and Research Centre v. State of Madhya Pradesh,[14] heardthe IA’s on the issue of transfer of unfilled NRI seats for the academicterm of 2012-13. Allowing the IA’s, it was observed that the finding inRD Gardi Medical College (supra) is contrary to the judgments ofBthe Constitution Bench in TMA Pai Foundation v. State ofKarnataka[15], a three-Judge Bench in TMA Pai Foundation v. Stateof Karnataka[16], and Inamdar (supra). The Court observed:

“18. We are of the considered view that the above principles laidCdown by the larger Benches of this Court, in the matter of fillingup of NRI seats were not correctly understood or applied by thisCourt in R.D. Gardi Medical College [(2010) 10 SCC 225] whileinterpreting Rule 8 of the M.P. Admission Rules, 2008. The findingrecorded in R.D. Gardi Medical College [(2010) 10 SCC 225]that the unfilled seats in NRI quota in unaided professional collegesDshould be treated as a part of the general pool and be sharedequally by the State and the unaided professional colleges goescontrary to the principles laid down by the eleven-Judge Benchin Pai Foundation [(2002) 8 SCC 481] , Inamdar [(2005) 6 SCC537] as well as the judgments rendered by the three-Judge BenchE[Ed. : And the judgment rendered by the five-Judge Bench in PaiFoundation, (1994) 4 SCC 728.] in Pai Foundation [(1995) 5SCC 220] , referred to earlier. The wrong interpretation givenin R.D. Gardi Medical College [(2010) 10 SCC 225] is seenincorporated in Rule 5 of the Madhya Pradesh Private Medicaland Dental Undergraduate Course Entrance Examination Rules,F2011 as well, which in our view cannot be legally sustained.”15. The Constitution bench in TMA Pai Foundation (supra)had held that the unfilled NRI quota seats can only be filled by themanagement at its discretion:

“3. So far as the NRI quota is concerned, we fixed the same asG15% last year. We fixed the NRI quota in respect of minorities’institutions as 5%. Although the NRI quota should not, normally,be more than 5%, but keeping in view the reduction in the fee 15 (1994) 4 SCC 728H16 (1995) 5 SCC 220

structure, we fix the same as 10% (of the total seats) for thisyear. We further make it clear that in case any seat in the NRIquota remains unfilled, the same can be filled by themanagement at its discretion.”

The three judge Bench in TMA Pai Foundation (supra) reiteratedthe observations of the Constitution Bench:

“(1) So far as NRI quota is concerned, it is fixed at fifteen percent for the current academic year. It shall be open to themanagement to admit NRI students and foreign students withinthis quota and in case they are not able to get the NRI orforeign students up to the aforesaid specified percentage, itshall be open to them to admit students on their own, in theorder of merit, within the said quota. This direction shall be ageneral direction and shall operate in the case of all the Stateswhere admissions have not been finalised. It is, however, madeclear that by virtue of this direction, no student who has alreadybeen admitted shall be disturbed or removed.”

A similar observation was also made by a two-Judge Bench ofthis Court in AP(P) Engineering College Management Associationv. Government of AP[17]. This Court in Modern Dental College andResearch Centre (supra) had further referred to Inamdar (supra)where it was held that the imposition of the reservation policy of theState on unaided private universities is an encroachment of the right andautonomy of private professional educational institutions:

“125. […] such imposition of quota of State seats or enforcingreservation policy of the State on available seats in unaidedprofessional institutions are acts constituting serious encroachmenton the right and autonomy of private professional educationalinstitutions. […] Such appropriation of seats can also not be heldto be a regulatory measure in the interest of the minority withinthe meaning of Article 30(1) or a reasonable restriction within themeaning of Article 19(6) of the Constitution.”

16. In Modern Dental College and Research Centre (supra),an IA was filed challenging the transfer of unfilled NRI seats to theState. However, in the matter before us, only an extension of time for A

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Athe submission of documents necessary for applying for the NRI quotaseats was sought. The prayer in the writ petition is extracted below:

“i. Issue a Writ of Mandamus or such other writ, order or directiondirecting the Respondents to grant time for fresh registration inNRI Quota to the eligible before commencement of the Mop-upBcounselling.

ii. Issue a Writ of Mandamus or such other writ, order or directiondirecting, the 3[rd] Respondent to consider and pass orders in ExhibitP3 representation within a time limit to be fixed by this Hon’bleCourt.

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iii. Permit the members of the Petitioner association to admit theNEET qualified eligible students who produce the necessarydocuments in NRI Quota before the cut off date stipulated by theKerala University of Health Sciences vide Exhibit P4, in the eventthe Respondents does not invite fresh applications in the NRIDQuota.Issue such other writ, order, or direction as may be just andnecessary in the interest of justice.”

17. Moreover, the observations in Modern Dental College andResearch Centre (supra) were made concerning admissions for theEyear 2011-2012. The principal issue of whether the unfilled NRI seats inunaided universities can be transferred to the State is pending before theConstitution Bench. Further, the observations made in PA Inamdar(supra) and the Constitution Bench in TMA Pai (supra) will have to beread with Article 15(5) which was included by the Constitution (Ninety-Fthird Amendment) Act 2005.

18. The names of only 7 of the 37 appellants find place in the NRIcategory list which was published by CEE on 31 January 2022. Therespondent has submitted that of the 7 appellants whose names findplace in the NRI category list, only 4 of them had registered options forNRI seats. However, candidates who had received a higher rank thanGthem were allotted those seats. Further, it was also submitted by therespondent that none of the 7 candidates registered their options for the45 NRI seats that were later converted to unreserved seats. Therespondent submits that only because none of the 7 candidates registered H

their options concerning NRI seats, were the seats converted tounreserved seats to prevent the seats from lying vacant.

19. Since the appellants have not challenged the provisions of theInformation Bulletin which stipulate that the vacant NRI seats shall beconverted to unreserved seats during the mop-up round, we cannot decideon the legality of such a conversion of seats. The 4 appellants who hadregistered their options for NRI seats had not exercised their optionswith respect to any of the vacant 45 NRI seats. The respondents merelycomplied with the provisions of the Information Bulletin which is not inchallenge before us in the present proceedings. The respondentassociation had only sought an extension of time for submission ofdocuments by candidates seeking to apply for the NRI quota seats. Therepresentation was rejected by CEE since sufficient time and extensionhad been given for the submission of the documents. The appellantshave not contended that the rejection of the representation was malafideor arbitrary.

20. We accordingly dismiss the appeals for the reasons set outabove.

21. Pending applications, if any, stand disposed of.

Nidhi Jain

Appeals dismissed.

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