NIPUN TAWARI & ORS versus THE STATE OF MAHARASHTRA & ORS. on 20 October 2022

[2022] 15 S.C.R. 591

NIPUN TAWARI & ORS.

v.

THE STATE OF MAHARASHTRA & ORS.

(Civil Appeal No. 7778 of 2022)

OCTOBER 20, 2022

[DR. DHANANJAYA Y. CHANDRACHUD ANDHIMA KOHLI, JJ.]

Education/Educational Institutions: Medical admission – PostGraduate Medical Degree courses in Maharashtra – Reservationfor in-service candidates – Issuance of admission brochure by theGovernment of Maharashtra on 21.09.2022 – Clause 7.2 of thebrochure providing that 50% of seats in post graduate diplomacourses would be reserved for in-service candidates; and that forin-service quota reservation, any change made by Government fromtime to time would be applicable – Thereafter, issuance ofgovernment Resolution dated 26.09.2022, providing for in-servicereservation to the extent of 20% seats in post graduate medicaldegree courses for officers serving in government hospitals – Writpetition by the appellants seeking that the resolution cannot be madeapplicable for admissions to post graduate medical degree coursesfor the 50% state quota in Government and Corporation run medicalcolleges for the current academic year-2022-23 – High Courtdismissed the Writ Petition – On appeal, held: Provisions of thebrochure specifically placed students on notice that in- servicereservations would abide by such resolutions as may be issued bythe government from time to time – Thus, the brochure envisagesthat there may be a change in the reservation policy for in-servicecandidates and accounts for the same – Rules of the examinationhave remained constant and the Government Resolution dated26.09.2022 did not change the rules after the admission processhad commenced – Selection criteria were not changed after theselection process commenced – Government Resolution dated26.09.2022 is in consonance with the brochure issued by theGovernment of Maharashtra – Thus, judgment of the High Courtdoes not call for interference – Post Graduate Medical Regulations,2000.

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ADismissing the appeal, the Court

HELD: 1.1 Clause 7.2 of the brochure issued by the StateGovernment provides that 50% of seats in post graduate diplomacourses would be reserved for in-service candidates. Clause 7.2also provides that “for in-service quota reservation, any changeBmade by Government from time to time will be applicable”. Anadditional weightage for in-service candidates was also prescribedby Clause 7.2 in terms of clauses 9(IV) and (VII) of the MCIRegulations. Clause 8.16.1 prescribes that the eligibility for in-service candidates would be in terms of the GovernmentResolution dated 19 March 2019 or any other GovernmentCResolution issued from time to time. Incentive marks of up to10% marks for each year of service in remote and/or difficultareas subject to a maximum of 30% of the marks obtained in theNEET-PG 2022 was prescribed in Clause 8.17 of the brochure.[Para 28][605-D-F]

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1.2 Clause 3 of the Government Resolution dated 26September 2022 which prescribes a reservation of 20% of theState quota seats for in-service candidates also makes it clearthat an in-service candidate seeking admission to the generalcategory will not get any additional marks other than the marksEobtained in the NEET Examination. In other words, an in-servicecandidate who opts for a seat in the general category would notbe entitled to any weightage of marks. The weightage of marksis, therefore, prescribed in relation to those candidates who aspirefor a seat in the 20% quota which is set apart for in-servicecandidates. [Para 29][605-F-H]F

1.3 The submission of the appellants that the GovernmentResolution dated 26 September 2022 ought not to apply for thecurrent academic year on the ground that it has altered the ‘rulesof the game’ midstream cannot be accepted. The High Court hasprincipally rejected the submission of the appellants on the groundGthat there was no challenge to the validity of the GovernmentResolution dated 26 September 2022 in which event, it is notpermissible for the court to read it down so as to exclude itsapplicability for the current academic year. [Para 30][606-A-B]

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NIPUN TAWARI & ORS. v. THE STATE OF MAHARASHTRA &ORS.

1.4 There was no specific prohibition in the brochure inthe matter of reservation for in-service candidates. On thecontrary, Clause 7.2 of the brochure issued by the State ofMaharashtra clearly specified that in quota reservations wouldabide by Government Resolutions as may be issued from time totime. Following the decision of the Constitution Bench in TamilNadu Medical Officers Association’s case, a writ petition was filedbefore the High Court of Judicature at Bombay seekingreservation for in-service candidates. In an order dated 24 January2022, the High Court noted that there was a difference ofperspective between the Public Health Department and MedicalEducation Department of the state. In this backdrop, the DivisionBench, while noting the view which was taken by the ConstitutionBench of this Court, adjourned the proceedings to 1 February2022. Evidently, the State Government was in the process oftaking a final decision which was ultimately reflected in theGovernment Resolution dated 26 September 2022. Thus, thebackground of the facts indicated in the earlier part of the judgmentwould show that there was a reservation for in-service candidatesin post graduate degree courses in the State of Maharashtra untilthe situation came to be altered as a result of the decision of thethree-judge bench in Dinesh Singh Chauhan’s case. The validityof reservation for in-service candidates in degree courses hassince been restored following the decision of the ConstitutionBench in Tamil Nadu Medical Officers Association’s case. Theprovisions in the brochure that in-service quota reservationswould abide by any change made by government from time totime must be understood in the context of the above facts. [Para31][606-C-G]

1.5 The provisions of the brochure specifically placedstudents on notice that in- service reservations would abide bysuch resolutions as may be issued by the government from timeto time. The issue, therefore, has to be construed in the specificbackground of the facts as they pertained to reservation in theState of Maharashtra for in-service candidates in post graduatedegree courses. [Para 32][607-A-B]

1.6 Clause 7.2 of the brochure issued by the State ofMaharashtra clearly specifies that the reservation policy for in- AB

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Aservice candidates is subject to any changes made by thegovernment from time to time. Hence, the brochure envisagesthat there may be a change in the reservation policy for in-servicecandidates and accounts for the same. The rules of theexamination have remained constant and the GovernmentResolution dated 26 September 2022 did not change the rules ofBthe game after the admission process had commenced. [Para33][607-E-F]

1.7 The selection criteria were not changed after theselection process commenced. To the contrary, the GovernmentResolution dated 26 September 2022 is in consonance with theCbrochure issued by the Government of Maharashtra. [Para34][607-F-G; 608-A]

1.8 Out of 1416 post graduate medical degree seats in theState of Maharashtra, 282 have been reserved for in-servicecandidates. It would appear that 268 candidates obtained NoDObjection Certificates from their departments to apply for thein-service reservation. In the first round of counselling, 69students were held to be eligible, having received marks abovethe cut off. 52 candidates have been granted admission in a postgraduate medical program. [Para 35][608-B-C]

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1.9 The Government of India, through the Ministry of Healthand Family Welfare, has issued a communication on 17 October2022 providing for a reduction in the cut- off marks in the NEET-PG 2022 by 25 percentile across all categories. Following theabove decision, it is likely that additional candidates would becomeFeligible to participate in the subsequent rounds of counselling.Moreover, from a reading of Clause 7.10 of the brochure, it isapparent that if any seats which have been provided for the in-service quota remain unfilled, they shall be distributed to the‘non-in-service’ category of candidates using the NEET-PG 2022merit list. [Para 36][608-D-E]G1.10 The judgment of the High Court does not call forinterference. [Para 37][608-E-F]

Tamil Nadu Medical Officers Association v. Union ofIndia (2021) 6 SCC 568 : [2020] 8 SCR 583 - followed.

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NIPUN TAWARI & ORS. v. THE STATE OF MAHARASHTRA &

ORS.

Dr Prerit Sharma v. Dr Bilu B S (2022) 2 SCC 751;State of Uttar Pradesh v. Dinesh Singh Chauhan (2016)9 SCC 749 : [2016] 6 SCR 571; Dr Suryakant TejraoLodhe v. State of Maharashtra, Neil Aurelio Nunes (OBCReservation) v. Union of India (2022) 4 SCC 1; A. P.Public Service Commission v. B. Swapna (2005) 4 SCC154 : [2005] 2 SCR 991; Maharashtra SRTC v.Rajendra Bhimrao Mandve (2001) 10 SCC 51 –referred to.

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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7778of 2022.

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From the Judgment and Order dated 14.10.2022 of the High Courtof Judicature at Bombay in Writ Petition No. 11845 of 2022.

Anand Grover, Sr. Adv., Madhav Bhatia, Ashish Choudhary, AdityaPandey, Yogesh Sharma, Rohit Amit Sthalekar, Advs. for the Appellants.

Sanjay R Hegde, Sr. Adv., Govind Jee, Omanakuttan KK, Advs.for the Respondents.

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

1. Leave granted.

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2. This appeal arises from a judgment dated 14 October 2022 of aDivision Bench of the High Court of Judicature at Bombay.

3. The issue pertains to the reservation of 20% seats for in-servicecandidates in post graduate medical degree courses by the State ofMaharashtra.

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4. On 15 January 2022, the National Board of Examinationsreleased its information bulletin for the NEET PG-2022 examination.The last date for registration for the entrance test was 25 March 2022.The examination was held on 21 May 2022. Results were declared on1 June 2022.

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A5. On 21 September 2022, the Government of Maharashtra issueda notice setting out the schedule for conducting admissions for postgraduate medical courses. The schedule is extracted below:- B

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6. On 21 September 2022, the Government of Maharashtra(through its CET Cell) issued a brochure for admissions. Clause 7.2provides as follows:

“7.2 The seats available for admission to medical postgraduatecourses will be distributed as 50% to All India Quota & remaining50% to the State Quota. From the State quota, 50% of Seats inpost graduate diploma courses from State Government/CorporationMedical Colleges will be reserved for In- service candidates inthe State Government services, who have served for at least 3years in remote and/or difficult areas. For In-service quotareservation, any change made by Government from time to timewill be applicable. The additional weightage for In-servicecandidates will be given as per clause 9 (IV) & (VII) of PostGraduate Medical Regulation 2000 of NMC / erstwhile MCI andas per Public Health Department Government Resolution No.MMO-2019/C.R.165/Service-3, dated 19th March 2019 and G.Rissued in this regard form time to time. 5% of available seats inPostgraduate courses in Government and Government Aidedinstitutions will be reserved for Person with Disability (PWD)candidates as per Annexure “D”. 1% of available postgraduateseats are reserved for Orphan category candidate. There will beconstitutional reservation applicable in Available State quota seats,(after excluding All India Quota) as mentioned in Annexure “C”.The parallel (Horizontal) reservation will be applicable for In-service quota seats, PWD quota seats and Orphan quota seats inGovernment and Government Aided institutions.”

7. Clause 7.2 indicates that 50% of the seats in post graduatediploma courses in medical colleges of the State Government andMunicipal Corporations were reserved for in-service candidates of theState Government who had served for at least three years in remoteand/or difficult areas. The clause also envisages that for in-service quota/reservation, any change made by the government from time to timewould apply. In addition, it was specified that the weightage for in-servicecandidates would be available in terms of Regulations (9)(IV) and (VII)of the Post Graduate Medical Regulations 2000. Clause 7.10 of the samebrochure (issued on 21 September 2022) provided as follows:

“7.10 If the seats reserved for State In-service quota in theparticular Constitutional reserve category remain unfilled on

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Aaccount of unavailability of candidate(s) after inter-se as per rulesamongst In-service candidates, the remaining seat(s) shall beincluded in the respective Constitutional reserve category and theseseats will be distributed to Non-in-service candidates using NEET-PG 2022 merit list.”

B8. The eligibility for in-service candidates was specified in clause8.16 of the brochure, which is extracted below:

“8.16 Eligibility for In-Service Candidates:

8.16.1 Eligibility for in-Service candidates will be as per criterialaid down by the Public Health Department of State of MaharashtraCfor In-service Medical Officers. As per Public Health DepartmentGovernment Resolution No. MMO-2019/C.R.165/Service-3, dated19th March 2019 and or any Government Resolution issued fromtime to time (Annexure-U).

8.16.2 In–Service candidate desirous to claim In-Service quotaDseat shall obtain No Objection Certificate from their establishmentfor admission process.

8.16.3 In service quota candidate must have appeared for NEET-PG 2022, and declared eligible by Competent Authority,Government of India, New Delhi.”

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9. Clause 8.17 of the brochure contains the following provision :

“8.17 Candidates for post-graduate medical courses shall beselected strictly on the basis of their NEET-PG merit. Howeveras per clause 9 (IV) & (VII) of NMC/erstwhile MCIPG regulation2000, in determining the merit of eligible In-Service candidatesFunder Government/Public authority, weight-age in the marks maybe given by Public Health Department as an incentive at the rateof upto 10% of marks obtained for each year of service in remoteand/or difficult areas maximum of 30% of marks obtained inNEET-PG 2022. The remote and difficult areas shall be as notifiedGby Government of Maharashtra from time to time. The decisionin this regard taken by The Directorate, Public Health Department,Government of Maharashtra will be final.”

10. Clause 8.17, inter alia, stipulated that while determining theeligibility of in-service candidates, a weightage of marks would beHprovided as an incentive at the rate of 10% of the marks obtained for each year of service in remote and/or difficult areas with a maximum of30% marks out of the marks obtained in the NEET-PG 2022. The remoteand difficult areas were to be those as notified by the State Governmentfrom time to time.

11. On 21 September 2022, online registration commenced foradmission to post graduate medical courses in the State of Maharashtra.The registration window was to remain open between 21 and 26September 2022. On 26 September 2022, the Government ofMaharashtra issued a Government Resolution providing for in-servicereservation to the extent of 20% seats in post graduate medical degreecourses for officers serving in government hospitals. The rationale forthe Government Resolution was explained in its foreword:

“At present, most of the seats of medical post graduate courseshave been converted into post graduate degrees. Therefore, ithas bene pointed out that the in-service medical officers are notdirectly benefiting from the reservation for admissions to postgraduate courses. In-service medical officers are serving ingovernment hospitals and if they are reserved for post graduatedegrees, patient care will be available to the general public of thestate through the specialists available from among them. Takingthe said matter into consideration, the issue of revised orderregarding in-service quota for admission to Post Graduate Degreeand Post Graduate Diploma courses in Government/MunicipalMedical Colleges was under consideration of the Government.”

12. The Government’s decision was in the following terms :

“1. From the academic year 2022-23, Government approval isbeing given to reserve 20% seats for in-service candidates foradmission to Post Graduate Degree and Diploma courses inGovernment/Municipal Medical Colleges in the State.

2. Marks to be obtained for admissions in in-service quotas ofpost-graduate courses and details for Selection of In-serviceCandidates for Quota Admissions (“Read” No. 2 and 3) mentionedabove in the Government decisions of the Department of PublicHealth or issued from time to time through that Department. Actionwill be taken as per the orders.

3. Government approval is being granted to reserve 20% of thestate quota seats for in-service candidates for admission to post

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Agraduate and diploma courses in government/municipal medicalcolleges in the state subject to the following conditions:

1) In addition to the said reservation quota, in-service candidatesseeking admission from the general category will not get anyadditional marks other than the marks in the NEET examination.

B2) In-service candidates after completion of post graduate course,apart from the service to be rendered under Public HealthDepartment, they will also be required to render one year of socialresponsibility service in Government Medical College.”

13. The seat matrix for the ensuing year was released by theCState government on 30 September 2022. The first round of counsellingcommenced on 3 October 2022 and was followed by provisionaladmissions between 4 and 8 October 2022.

14. The appellants instituted a writ petition before the High Courtof Judicature at Bombay. There was no challenge to the GovernmentDResolution dated 26 September 2022. The submission of the appellantswas that the resolution cannot be made applicable for admissions to postgraduate medical degree courses for the 50% state quota in Governmentand Corporation run medical colleges for the current academic year i.e.,Academic Year 2022-23. This is evident from clauses (a) and (b) of theEreliefs sought in paragraph 12 of the Writ Petition which are extractedbelow :

“(a) hold and declare that the provisions of impugned GovernmentResolution dated 26[th] September 2022 cannot be made applicablefor the purposes of admission to post graduate medical degreeFcourses from the 50% State quota in any government orcorporation medical college from the current academic year 2022-2023 and for this purpose issue appropriate writ and/or order.

(b) direct the Respondent Authorities to conduct the admissionprocess of post graduate medical degree courses in respect of50% State Quota for the academic year 2022-2023 withoutGapplying the 20% reservation in favour of the in-service candidatesas per the impugned Government Resolution dated 26[th] September2022.”

15. The High Court dismissed the Writ Petition by its impugnedjudgment dated 14 October 2022.H

16. We have heard Mr. Anand Grover, senior counsel appearingon behalf of the appellants and Mr Siddharth Dharmadhikari, counselappearing on behalf of the State of Maharashtra. The Court has alsobeen assisted by Mr. Sanjay Hegde, senior counsel and Mr. SudhanshuChoudhari, counsel appearing on behalf of the intervening in-servicecandidates who have been provisionally admitted following the first roundof counselling.

17. Principally, the challenge which has been addressed beforethis Court by Mr. Anand Grover, senior counsel is two-fold. Firstly, it hasbeen submitted that the Government Resolution dated 26 September2022, providing for a reservation of 20% for in-service candidates, wasissued after the admission process had commenced for Academic Year2022-23, and would hence be inapplicable for that academic year. In thiscontext, reliance has been placed on a three-judge bench decision of thisCourt in Dr Prerit Sharma v. Dr Bilu B S[1] in support of the submissionthat the underlying principles for admission cannot be altered once theadmission process has commenced. Secondly, it has been submitted thatthe State Government while providing for in-service reservation has notcollected any data which is evident from the fact that out of 1416 seatsfor post graduate medical degree courses in the State of Maharashtra,282 seats were made available for the in-service quota but only 69 in-service candidates appeared for the NEET-PG held in May 2022 out ofwhich 52 have been considered to be eligible for being granted admission.On this hypothesis, it has been submitted that it is evident that thereservation of 20% is disproportionately high as a consequence of whichonly 52 out of the 282 seats have been filled up in the first round.

18. On the other hand, it has been submitted by Mr SiddharthDharmadhikari, counsel appearing on behalf of the State of Maharashtrathat :

(i) There was no change in the rules governing admissionmidstream since the brochure released by the StateGovernment made it abundantly clear that the reservationfor in-service candidates would abide by such resolutionsas would be issued by the State Government from time totime;

(ii) This must be considered in the backdrop of the fact that in-service reservation in post-graduate degree courses in1 (2022) 2 SCC 751

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Agovernment medical colleges was provided in the State ofMaharashtra prior to 2017 but was discontinued as a resultof the judgment of a three judge bench of this Court inState of Uttar Pradesh v. Dinesh Singh Chauhan.[2]However, the reservation for in-service candidates wasrestored after the subsequent decision of the ConstitutionBBench in Tamil Nadu Medical Officers Association v.Union of India;[3] and A

(iii) There has been no change of policy midstream and theState Government has aligned the in-service reservationfor post graduate degree courses, as provided earlier, saveCand except for reducing the quantum of reservation from30% to 20%.

19. Mr. Sanjay Hegde, senior counsel and Mr. SudhanshuChoudhari, counsel appearing on behalf of the intervenors have reliedon the fact that admissions have already been granted in the first roundDof counselling and the students who were admitted have not beenimpleaded as parties to these proceedings. Moreover, it has beensubmitted that there was no challenge to the legality and validity of theGovernment Resolution dated 26 September 2022. Hence, the HighCourt, it is urged, was justified in holding that in the absence of a challengeEto the validity of the Government Resolution, it was not open to it to readdown the provision so as to exclude its applicability for the currentacademic year.

20. While considering the rival submissions, it must be noted atthe outset that on 16 August 2016, a three-judge bench of this Court heldFin Dinesh Singh Chauhan (supra) that reservation for in-servicecandidates to post graduate medical degree courses was violative of theprovisions of Regulation 9 of the Regulations framed by the MedicalCouncil of India[4] in 2000.

21. The correctness of the decision of the three-judge bench inGDinesh Singh Chauhan became the subject matter of a reference to aConstitution Bench. The judgment of the Constitution Bench, reportedas Tamil Nadu Medical Officers Association (supra), was renderedon 31 August 2020. The Constitution Bench, inter alia, held that :

2 (2016) 9 SCC 7493 (2021) 6 SCC 568H4 “MCI”

(i) Regulation 9 of the MCI Regulations 2000 does not makeprovisions for or affect the competence of the States tomake reservation by providing a separate source of entryfor in-service candidates seeking admission to post graduatedegree courses; and

(ii) Each State was, in terms of its constitutional obligation toprovide better health care facilities to its citizens, entitled toprescribe an in-service quota for the purpose of upgradingthe qualifications of existing in-service doctors.

22. The conclusions which have been formulated in paragraphs23.5 and 23.8 of the decision of the Constitution Bench in Tamil NaduMedical Officers Association (supra), delivered by Justice M.R. Shahare extracted below :- “23.5) That Regulation 9 of MCI Regulations, 2000 does not dealwith and/or make provisions for reservation and/or affect thelegislative competence and authority of the concerned States tomake reservation and/or make special provision like the provisionproviding for a separate source of entry for in-service candidatesseeking admission to postgraduate degree courses and thereforethe States concerned to be within their authority and/or legislativecompetence to provide for a separate source of entry for in-servicecandidates seeking admission to postgraduate degree courses inexercise of powers under List III Entry 25; …

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23.8) That the State has the legislative competence and/or authorityto provide for a separate source of entry for in-service candidatesseeking admission to postgraduate degree/diploma courses, inexercise of powers under List III Entry 25. However, it is observedthat the policy must provide that subsequent to obtaining thepostgraduate degree by the in-service doctors concerned obtainingentry in degree courses through such separate channel serve theState in the rural, tribal and hilly areas at least for five years afterobtaining the degree/diploma and for that they will execute bondsfor such sum the respective States may consider fit and proper;”

23. In the State of Maharashtra, there was an in-service quotafor post graduate degree courses to the extent of 30% of the total seats.The validity of the in-service reservation in post graduate degree courses

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Acame under a cloud in view of the judgment of the three-judge bench inDinesh Singh Chauhan (supra). However, the reservation for in-servicecandidates in diploma courses continued to exist since a specific provisionin that regard was contained in Regulation 9(VII) of the MCI Regulations2000.B24. The issue as to whether it was open to the State Governmentto provide in-service reservation in post graduate medical degree coursesto doctors employed in government hospitals was authoritatively settledin the judgment of the Constitution Bench in Tamil Nadu MedicalOfficers Association (supra), following which the State of Maharashtrahas decided to introduce an in-service reservation by its GovernmentCResolution dated 26 September 2022.

25. The principal issue before us is whether the GovernmentResolution would have to be held not to apply to the current academicyear on the ground which is urged by the appellants, namely, that there isa change in the rules governing admission after the admissions processDhas commenced.

26. Before considering the relevant clauses of the brochuregoverning admissions, it would be necessary to advert to the decision ofa three-judge bench of this Court in Dr. Prerit Sharma (supra) uponwhich the appellants have placed reliance. In that case, the issue pertainedEto reservation of 50% seats by the State of Tamil Nadu for in-servicecandidates in super-speciality courses offered by government medicalcolleges. The information bulletin for the NEET-SS 2020 was issued on3 August 2020. The examinations were scheduled for 15 September2020 and the results were declared on 25 September, 2020. The bulletinFgoverning the admission process clearly specified that there shall benoreservation of seats for super-speciality DM/MCH courses. This isemphasised in the following extract of the decision of this Court:

“15. … It was made clear in Point 5.16 of the bulletin that thereshall be no reservations of seats for superspeciality DM/MCHcourses.”G

The Court noted that the counselling for admissions to super-speciality medical courses was postponed at which stage, the Governmentof Tamil Nadu issued a resolution on 7 November 2020 reserving 50%of super-speciality seats in government medical colleges to in-servicecandidates. It was in this backdrop that the Court observed:H

“18. The process for admissions to superspeciality medical coursesstarted on 3-8-2020 and it was made clear to all the competingcandidates that there shall be no reservation to superspecialitymedical courses. The Government Order issued by the State ofTamil Nadu on 7-11-2020 reserving 50% seats for in-servicedoctors would be detrimental to the interests of the meritoriousdoctors as 50% of the available seats in the State of Tamil Naduin superspeciality medical courses will not be available to them.”

Apart from this, the Court noted that admittedly no reservationfor in-service doctors was implemented since 2016 and since theadmissions process was “at the final stages”, reservation for in-servicedoctors could not be permitted for that year.

27. The facts pertaining to the reservation for in-service doctorsin the State of Maharashtra for post graduate medical courses wouldnow have to be noticed.

28. Clause 7.2 of the brochure issued by the State Governmentprovides that 50% of seats in post graduate diploma courses would bereserved for in-service candidates. Clause 7.2 also provides that “for in-service quota reservation, any change made by Government from timeto time will be applicable”. An additional weightage for in-servicecandidates was also prescribed by Clause 7.2 in terms of clauses 9(IV)and (VII) of the MCI Regulations. Clause 8.16.1 prescribes that theeligibility for in-service candidates would be in terms of the GovernmentResolution dated 19 March 2019 or any other Government Resolutionissued from time to time. Incentive marks of up to 10% marks for eachyear of service in remote and/or difficult areas subject to a maximum of30% of the marks obtained in the NEET-PG 2022 was prescribed inClause 8.17 of the brochure.

29. Clause 3 of the Government Resolution dated 26 September2022 which prescribes a reservation of 20% of the State quota seats forin-service candidates also makes it clear that an in-service candidateseeking admission to the general category will not get any additionalmarks other than the marks obtained in the NEET Examination. In otherwords, an in-service candidate who opts for a seat in the general categorywould not be entitled to any weightage of marks. The weightage ofmarks is, therefore, prescribed in relation to those candidates who aspirefor a seat in the 20% quota which is set apart for in-service candidates.

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A30. It is difficult to accept the submission of the appellants thatthe Government Resolution dated 26 September 2022 ought not to applyfor the current academic year on the ground that it has altered the ‘rulesof the game’ midstream. The High Court has principally rejected thesubmission of the appellants on the ground that there was no challengeto the validity of the Government Resolution dated 26 September 2022Bin which event, it is not permissible for the court to read it down so as toexclude its applicability for the current academic year.

31. Apart from the above reasoning of the High Court, it is evidentthat unlike the situation which resulted in the decision of this Court inDr. Prerit Sharma (supra), there was no specific prohibition in theCbrochure in the matter of reservation for in-service candidates in thepresent case. On the contrary, Clause 7.2 of the brochure issued by theState of Maharashtra clearly specified that in quota reservations wouldabide by Government Resolutions as may be issued from time to time.Following the decision of the Constitution Bench which has been notedDabove, a writ petition was filed before the High Court of Judicature atBombay[5] seeking reservation for in-service candidates. In an order dated24 January 2022, the High Court noted that there was a difference ofperspective between the Public Health Department and MedicalEducation Department of the state. In this backdrop, the Division Bench,while noting the view which was taken by the Constitution Bench of thisECourt, adjourned the proceedings to 1 February 2022. Evidently, the StateGovernment was in the process of taking a final decision which wasultimately reflected in the Government Resolution dated 26 September2022. Thus, the background of the facts indicated in the earlier part ofthe judgment would show that there was a reservation for in-serviceFcandidates in post graduate degree courses in the State of Maharashtrauntil the situation came to be altered as a result of the decision of thethree-judge bench in Dinesh Singh Chauhan (supra). The validity ofreservation for in-service candidates in degree courses has since beenrestored following the decision of the Constitution Bench in Tamil Nadu Medical Officers Association (supra). The provisions in the brochureGthat in-service quota reservations would abide by any change made bygovernment from time to time must be understood in the context of theabove facts.

32. The provisions of the brochure specifically placed students onnotice that in-service reservations would abide by such resolutions asmay be issued by the government from time to time. The issue beforeus, therefore, has to be construed in the specific background of the factsas they pertained to reservation in the State of Maharashtra for in-servicecandidates in post graduate degree courses.

33. In Neil Aurelio Nunes (OBC Reservation) v. Union ofIndia,[6] this Court was faced with a similar set of facts. In that case, theregistration for the examination closed on 18 April 2021. A noticeproviding reservation for OBC and EWS candidates was issued on 29July 2021. This notice was challenged on the ground that the rules of theexamination could only be changed before the last date of registrationfor the examination. A two-judge bench of this Court (of which one ofus, Justice DY Chandrachud, was a part) ruled that the impugned noticedid not alter the rules of the game after the game had begun because theInformation Bulletin in that case specified that the details of the applicablereservation would be notified by the counselling authority through aseparate handbook. This being the case, the candidates who wished toregister for the examination were aware that details regarding the seatmatrix/reservation would be made available at a later stage. Similarly, inthe present case, Clause 7.2 of the brochure issued by the State ofMaharashtra clearly specifies that the reservation policy for in-servicecandidates is subject to any changes made by the government from timeto time. Hence, the brochure envisages that there may be a change inthe reservation policy for in-service candidates and accounts for thesame. The rules of the examination have remained constant and theGovernment Resolution dated 26 September 2022 did not change therules of the game after the admission process had commenced.

34. The appellants have also relied upon the decisions of this Courtin A.P. Public Service Commission v. B. Swapna[7]and MaharashtraSRTC v. Rajendra Bhimrao Mandve[8] for the proposition that theprescribed selection criteria cannot be changed once the selection processhas started. However, for the reasons discussed above, we find that theselection criteria were not changed after the selection processcommenced. To the contrary, the Government Resolution dated 26

6 (2022) 4 SCC 1

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ASeptember 2022 is in consonance with the brochure issued by theGovernment of Maharashtra. Hence, neither of the decisions cited bythe appellants is of any assistance to their case.

35. The facts which have been set out in the judgment of the HighCourt and which have been placed on the record of this Court by theBinterveners indicate that out of 1416 post graduate medical degree seatsin the State of Maharashtra, 282 have been reserved for in-servicecandidates. It would appear that 268 candidates obtained No ObjectionCertificates from their departments to apply for the in-service reservation.In the first round of counselling, 69 students were held to be eligible,having received marks above the cut off. 52 candidates have been grantedCadmission in a post graduate medical program.

36. The Government of India, through the Ministry of Health andFamily Welfare, has issued a communication on 17 October 2022 providingfor a reduction in the cut-off marks in the NEET-PG 2022 by 25 percentileacross all categories. Following the above decision, it is likely thatDadditional candidates would become eligible to participate in thesubsequent rounds of counselling. Moreover, from a reading of Clause7.10 of the brochure, it is apparent that if any seats which have beenprovided for the in-service quota remain unfilled, they shall be distributedto the ‘non-in-service’ category of candidates using the NEET-PG 2022Emerit list.

37. For the above reasons, we are of the considered view that thejudgment of the High Court does not call for interference, though for thereasons which have been indicated above.

38. The appeal is accordingly dismissed.F

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

Nidhi Jain(Assisted by : Shashwat Jain, LCRA)

Appeal dismissed.

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