DR. ASTHA GOEL AND ORS. versus THE MEDICAL COUNSELLING COMMITTEE & ORS. on 10 June 2022

1. As common question of law and facts arise in this group of writpetitions/special leave petitions, they are being disposed of by this commonorder.

2. For the sake of convenience, Writ Petition (C) No.409 of 2022-Dr. Astha Goel and Ors. Vs. The Medical Counselling Committee &Ors. is treated as the lead matter. By way of this writ petition being WritPetition No. 409 of 2022 under Article 32 of the Constitution of India,the seven petitioners have prayed for the following reliefs:-

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A“a)Issue an Appropriate Writ, Order or Direction, in the natureof a Writ of Mandamus, under Article 32 of the Constitutionto direct Respondent No. 1 to provide the exact number ofvacant seats after the conduct of stray vacancy round ofAIQ; Bb)Issue an Appropriate Writ, Order or Direction, in the natureof a Writ of Mandamus, under Article 32 of the Constitutionto direct Respondent No. 1 to conduct a Special Stray Roundof counselling to allow the candidates to participate for thevacant seats which are available after the conduct of strayvacancy round of AIQ; C

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3. In Writ Petition (C) No. 393 of 2022, one additional prayer ismade to issue an appropriate writ, direction or order directing therespondent Nos. 1 and 2 –The Medical Consulting Committee and theDUnion of India to revert the Medical P.G. seats remaining vacant afterthe AIQ stray vacancy round as regards the admissions conductedpursuant to NEET-PG-2021 examination to the State Quotas, for beingallotted through State Mop-Up Rounds.

4. The petitioners of Special Leave Petition (C) No. 10395 ofE2022 and Special Leave Petition (C) No. 10539 of 2022 approached therespective High Courts for the very reliefs, which are now sought in theaforesaid writ petitions, namely directing the respondents to conduct aSpecial Stray Round of counselling so as to allow them to participate forthe vacant seats, which are available after the conduct of stray vacancyround of AIQ. By the impugned orders, the respective High Courts haveFdismissed the writ petitions, hence the original writ petitioners havepreferred the present special leave petitions.

5. The dispute is with respect to the admissions for NEET-PG-2021. Around 40,000 seats were available for NEET-PG examination,which included the clinical as well as non-clinical seats. 92,000 candidates/Gdoctors were initially eligible for examination for the said seats. However,subsequently, the percentage was lowered by communication dated12.05.2022 and another 25,000 candidates became eligible.

5.1 The NEET-PG examination was conducted on 11.09.2021.The result was declared on 28.09.2021. As per the earlier counsellingHscheme, there were two rounds of counselling for All India Seats as well as State Quotas seats respectively. However, as per the modifiedcounselling scheme, counselling is to be carried in four rounds and noseats were to be reverted to States. These four rounds were AIQ Round1, AIQ Round 2, AIQ Mop-up Round and AIQ Stray Vacancy Round.

5.2 That for NEET-PG-2021, Round 1 was held on 12.01.2022,Round 2 was held on 05.02.2022, Mop-Up Round was held on 14.04.2022and final Stray Round started on 28.04.2022 and ended on 07.05.2022.At the end of the four rounds of counselling, each for All India Quotaand State Quotas (in all eight rounds of counselling) and thereafter oneanother round of counselling was conducted, and still approximately 1456seats remain vacant.

5.3 The respective petitioners, who earlier participated in all thecounsellings and could not get the admissions have now approached thisCourt by way of present writ petitions/special leave petitions praying forSpecial Stray Round of counselling with respect to the remaining 1456seats remained vacant and to allow them to participate for the vacantseats, which are available after the conduct of the Stray vacancy roundof AIQ.

6. Ms. Rachna Shrivastava, learned Senior Advocate has appearedon behalf of the writ petitioners of Writ Petition (C) No. 409 of 2022;Shri A.D.N. Rao, learned Senior Advocate has appeared on behalf ofthe petitioner in Special Leave Petition (C) No. 10395 of 2022; ShriAvijit Mani Tripathi, learned counsel has appeared on behalf of thepetitioner in Special Leave Petition (C) No. 10539 of 2022 and ShriKunal Cheema, learned counsel has appeared on behalf of the writpetitioner in Writ Petition (C) No.393 of 2022. Shri Balbir Singh, learnedAdditional Solicitor General has appeared on behalf of the Union ofIndia and Shri Gaurav Sharma, learned counsel has appeared on behalfof the Medical Counselling Committee as well as the National Board ofExaminations.

7. Learned Senior Advocates/counsel appearing on behalf of therespective petitioners have made following submissions in support oftheir prayer to direct the respondents to conduct a Special Stray Roundof counselling with respect to the seats which have remained vacant:-

(i) Total 1456 seats have remained vacant for NEET-PG-2021,wastage of 1456 seats still hamper the interest of bothcolleges and the candidates; A

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A(ii)The respective petitioners – candidates are ready to getadmission on any of the seats remained vacant;

(iii) Due to abrupt addition of additional seats in NEET-PG-2021, an additional round of counselling for 146 seats wasconducted pursuant to the order passed by this Court. ApartBfrom this, the Mop-Up round was cancelled and wasdirected to be reconducted. Therefore, the point of fourcounselling cannot be brought when due to severe glitchesadditional rounds were already conducted;

(iv) Out of 1456 seats remaining vacant, there are many seats,which are clinical seats also. Therefore, it is not correct toCsay that the seats, which have remained vacant are ofParamedical courses;

(v) The seats which have remained vacant have remainedvacant due to the non-joining, resignation and the candidatesnot reported. It is submitted that therefore, it was the dutyDcast upon the respondents to fill up the posts remained vacantdue to the aforesaid grounds from and amongst the remainingcandidates;

(vi) It is the duty of the Medical Counselling Committee to haveconducted an additional round keeping in view the largeEnumber of seats (1456) remaining vacant;

(vii) Closing of the software before filling of those seats itself isnot justifiable. Even if the software is closed, looking at thegravity and urgency, a mechanism can be developed to fillin the vacant seats;(viii) That the submission on behalf of the Medical CounsellingCommittee and the Union of India that the respectivecandidates have already been refunded the amount cannotbe a ground not to conduct an additional round of counselling; F

(ix) The candidates for NEET-PG-2021 and 2022 are different.GMany candidates, who participated in the counselling forNEET-PG-2021 did not even register for NEET-PG-2022with a hope that they will get a seat in the counselling.Registration for NEET-PG-2022 has already been closedon 25.03.2022, giving no room to the candidates for NEET-HPG-2021 to appear for the NEET-PG-2022;

(x) The candidates cannot be replaced for NEET-PG-2021 andANEET-PG-2022, 1456 seats can only be open for a merit-based competition for NEET-PG-2021;

(xi) If the candidates like the petitioners are given the admissionson the seats remaining vacant now, it may not affect theireducation. Even the classes of NEET-PG-2021 started evenmuch before the first counselling batch started. Thatthereafter and after the courses started, there are threeMop-Up Rounds conducted and the students are givenadmissions and the last admission was given on 07.05.2022.The students, who are given admissions now will be able tocomplete their full studies.

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Making above submissions, it is urged and prayed to direct therespondents to conduct a Special Stray Round of counselling as a one-time measure and as a special case.

8. Present petitions/special leave petitions are vehemently opposedby Shri Balbir Singh, learned ASG appearing on behalf of the Union ofIndia and Shri Gaurav Sharma, learned counsel appearing on behalf ofthe Medical Counselling Committee. A counter is filed on behalf of therespondent Nos. 1 and 3 – Union of India/ Director General of HealthServices.

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8.1 It is vehemently submitted by Shri Balbir Singh, learned ASGthat in the present case, the dispute is with respect to the NEET-PG-2021 seats. It is submitted that in the present case, four rounds ofcounselling each for All India Quota and State’s Quotas have been carriedout and out of 40,000 seats only 1456 seats have remained vacant afterin all nine rounds of counselling. It is submitted that out of 1456 seatsremaining vacant, approximately, 1100 seats are with respect to non-clinical courses and the remaining seats are with respect to the privatecolleges and with respect to the clinical courses. It is submitted that allthose seats have remained vacant, which usually remain vacant everyyear as they are notakers and/or they can be said to be rejected seats. Itis submitted that all those seats remain vacant every year and, in manycases, they are not opted by the concerned candidate as nobody like toopt for non-clinical courses and even with respect to some of the clinicalcourses, as there is a high fee in the private colleges, they are notakersand therefore, some of the seats are remaining vacant every year. It issubmitted that therefore even after one additional round of counselling is F

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Acarried out as requested by the petitioners, in that case also the seats arebound to remain vacant. It is submitted that there cannot be endlessexercise of conducting counseling one after another till all the seats arefilled in. It is submitted that after the nine rounds of counselling whensome of the seats have remained vacant and considering the fact thatthe PG courses (clinical) is three-years course, out of which, for whateverBreason, more than one year had gone and there cannot be anycompromise so far as the Medical Education is concerned and consideringthe fact that the admission process for NEET-PG-2022 has already begunand the counselling for NEET-PG-2022 is to begin/start in July, 2022, aconscious decision has been taken not to conduct one another SpecialCStray Round of counselling.

8.2 It is further submitted on behalf of the Union of India and theMedical Counselling Committee that the last round of counselling endedon 07.05.2022. That thereafter, the entire software mechanism has beenclosed and the security deposit has also been refunded to the eligibleDcandidates. It is submitted that a significant proportion of seats, whichremain vacant are in non-clinical courses and these are no taker seats,which seats generally remain vacant. It is submitted that every year,some number of seats remain vacant. It is submitted that the identicalquestion came to be considered by this Court in the case of EducationPromotion Society for India and Anr. Vs. Union of India and Ors.,E(2019) 7 SCC 38. It is submitted that before this Hon’ble Court, thepetitioners prayed for general extension of time and prayed for additionalMop-Up Round of counselling on the ground that a large number ofseats for PG courses were lying vacant. It is submitted that in the saiddecision after taking note of the fact that every year, large number ofFnon-clinical seats remain vacant because many graduate doctors do notwant to do postgraduation in non-clinical subjects, it is observed thatmerely because the seats are lying vacant is not a ground to grantextension of time and grant further opportunity to fill up vacant seats. Itis submitted that in the aforesaid decision, it is observed that the schedulemust be followed and if the violation of schedule is permitted andGextension is granted, it will be opening a pandora’s box and the wholepurpose of fixing a time schedule and laying down a regime which strictlyadheres to the time schedule will be defeated.

8.3 Shri Gaurav Sharma, learned counsel appearing on behalf ofthe Medical Counselling Committee and the National Board ofHExaminations has also relied upon the earlier decision of this Court in the case of Supreet Batra and Ors. Vs. Union of India and Ors., (2003)3 SCC 370 in support of his submission that even if some seats remainedvacant, the students cannot be admitted mid-term.

8.4 Making above submission, it is prayed to dismiss the presentwrit petitions/special leave petitions.

9. Heard the learned counsel appearing for the respective partiesat length.

10. At the outset, it is required to be noted that in the present case,the dispute is with respect to the NEET-PG-2021 and the time schedulefor the approved counselling has been fixed pursuant to the directionissued by this Court and/or approved by this Court. Ordinarily, the firstround of counselling in PG courses begins in the month of March ofevery academic year and subsequently the academic session begins fromthe month of May of every academic year. However, NEET-PG-2021examination was delayed due to the third wave of COVID-19 pandemicand various litigations across the nation implementing the 27% OBCreservation in AIQ seats.

10.1 At this stage, it is required to be noted that as per the earliercounselling policy, only two rounds of counselling were being held for AllIndia Quota seats and State Quotas. The modified scheme of counsellingfor Academic Year 2021-2022 and onwards was submitted before thisCourt in Special Leave Petition (C) No.10487 of 2021 and this Courtapproved the same. As per the modified scheme of counselling, this timefour rounds of counselling have been undertaken for All India Quotaseats as well as States’ Quotas each. That thereafter one another roundof counselling was conducted pursuant to the subsequent order passedby this Court, as approximately 146 seats were added. The NEET-PG-2021 counselling commenced on 12.01.2022 and after completion of thefour rounds of counselling for All India Quota seats and State Quotas (inall eight rounds of counselling), out of 40,000 seats, 1456 seats haveremained vacant. It appears that out of 1456 seats approximately morethan 1100 seats are with respect to the non-clinical courses and theremaining are with respect to the clinical courses and all the seats arewith respect to the private institutions. The respective petitioners areclaiming admission on the remaining vacant seats and have prayed todirect the respondents to conduct a Special Stray Round of counselling.The main submission on behalf of the petitioners, as noted hereinabove, A

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Ais that as large number of seats have remained vacant, the same befilled in by conducting additional/Special Stray Round of counselling forthe seats remaining vacant, which are mostly non-clinical courses, whichremained even after eight or nine rounds of counselling. The studentscannot still pray for admission on those seats remaining vacant afterapproximately one year of academic session and remaining vacant afterBeight or nine rounds of counselling.

10.2 At this stage, the decisions of this Court in the case of SupreetBatra and Ors. (supra) and Education Promotion Society for Indiaand Anr. (supra) are required to be referred to.

CIn the case of Supreet Batra and Ors.(supra), it is observedand held that even if some seats remain vacant, the students cannot beadmitted mid-term. In paragraph 7, it is observed and held as under:- “7. When a detailed scheme has been framed through orders ofthis Court and the manner in which it has to be worked out is alsoDindicated therein, we do not think that if in a particular year thereis any shortfall or a certain number of seats are not filled up, thesame should be done by adopting one more round of counsellingbecause there is no scope for the third round of counselling underthe Scheme. It would not be advisable to go on altering the Schemeas and when seats are vacant. What is to be borne in mind is thatEbroad equality will have to be achieved and not that it should resultin any mathematical exactitude. Out of about 1600 seats, if 200seats are not filled up for various reasons and such not-filled-upseats were much less in the earlier years, we do not think it shouldresult in the third round of counselling. If that process is to beFadopted then there will be again vacancies and further filling upof the seats falling vacant will have to be undertaken. In thatprocess, it will become endless until all the seats under the all-India quota are filled up. That is not the object of the Schemeformulated by this Court. The object was to achieve a broad-based equality as indicated by us at the outset and we do not thinkGthat any steps have to be taken for altering the Scheme. We havetaken identical view in the decision in Neelu Arora v. Union ofIndia [(2003) 3 SCC 366] and connected matters disposed of on24-1-2003. Moreover, this Court in Medical Council ofIndia v. Madhu Singh [(2002) 7 SCC 258] has taken the viewHthat there is no scope for admitting students midstream as that

would be against the very spirit of statutes governing medicaleducation. Even if seats are unfilled that cannot be a ground formaking mid-session admissions and there cannot be telescopingof unfilled seats of one year with permitted seats of the subsequentyear. If these aspects are borne in mind, we do not think anyreliefs as sought for by the petitioners can be granted under thesepetitions. These writ petitions shall stand dismissed.”

10.3 In the case of Education Promotion Society for Indiaand Anr. (supra), the writ petitioners like the petitioners in the presentcase prayed for extension of time schedule and prayed for the additionalcounselling. This Court negated the same. This Court also took the noteof the fact that every year large number of non-clinical seats remainvacant because many graduate doctors do not want to do postgraduationin non-clinical subjects. Thereafter, it is observed and held that merelybecause the seats are lying vacant, is not a ground to grant extension oftime and grant further opportunity to fill up vacant seats. It is observedthat the schedule must be followed. While holding so, it is observed inparagraph 6 as under:- “6. In this case the petitioners want a general extension of timenot on account of any particular difficulty faced by any individualcollege or university but generally on the ground that a largenumber of seats for the PG courses are lying vacant. It is statedthat more than 1000 seats are lying vacant. In the affidavit filedby the UoI it is mentioned that as far as deemed universities areconcerned there are 603 seats lying vacant. However, it is importantto note that out of 603 seats lying vacant only 31 are in clinicalsubjects and the vast majority (572) that is almost 95% of theseats are lying vacant in non-clinical subjects. There is no materialon record to show as to what is the situation with regard to theremaining 400-500 seats. This Court however can take judicialnotice of the fact that every year large number of non-clinicalseats remain vacant because many graduate doctors do not wantto do postgraduation in non-clinical subjects. Merely because theseats are lying vacant, in our view, is not a ground to grant extensionof time and grant further opportunity to fill up vacant seats. Theschedule must be followed. If we permit violation of schedule andgrant extension, we shall be opening a pandora’s box and thewhole purpose of fixing a time schedule and laying down a regimewhich strictly adheres to time schedule will be defeated.”

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A10.4 Applying the law laid down by this Court in the aforesaid twodecisions to the facts of the case on hand and when the MedicalCounselling Committee and the Union of India have to adhere to thetime schedule for completing the admission process and when the currentadmission of NEET-PG-2021 is already behind time schedule and everafter conducting eight to nine rounds of counselling, still some seats,Bwhich are mainly non-clinical courses seats have remained vacant andthereafter when a conscious decision is taken by the Union Government/the Medical Counselling Committee, not to conduct a further SpecialStray Round of counselling, it cannot be said that the same is arbitrary.The decision of the Union Government and the Medical CounsellingCCommittee not to have Special Stray Round of counselling is in the interestof Medical Education and Public Health. There cannot be anycompromise with the merits and/or quality of Medical Education, whichmay ultimately affect the Public Health.

10.5 The process of admission and that too in the medical educationDcannot be endless. It must end at a particular point of time. The timeschedule has to be adhered to, otherwise, ultimately, it may affect themedical education and the public health.

10.6 Apart from the fact that after closure of the last round ofcounselling on 07.05.2022, the entire software mechanism has beenEclosed and the security deposit is refunded to the eligible candidates, it isto be noted that the admission process for NEET-PG-2022 has alreadybegun, the results for the NEET-PG-2022 has been announced on01.06.2022 and as per the time schedule, the counselling process is goingto start in July, 2022. Therefore, if one additional Special Stray Round ofcounselling is conducted now, as prayed, in that case, it may affect theFadmission process for NEET-PG-2022.

10.7 At the cost of repetition, it is observed and held that evenafter eight to nine rounds of counselling, out of 40,000 seats, 1456 seatshave remained vacant, out of which approximately, more than 1100 seatsare non-clinical seats, which every year remain vacant, of which theGjudicial notice has been taken by this Court in the case of EducationPromotion Society for India and Anr. (supra)

11. In view of the above and for the reasons stated above, thepetitioners are not entitled to any relief of writ of Mandamus directingthe respondents to conduct a Special Stray Round of counselling forH

filling up the remaining vacant seats of NEET-PG-2021. Granting ofAsuch relief now may affect the medical education and ultimately thepublic health as observed hereinabove.

12. Under the circumstances, both these writ petitions and thespecial leave petitions deserve to be dismissed and are accordinglydismissed. However, in the facts and circumstances of the case, thereshall be no order as to costs.

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Petitions dismissed.

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