NEPPALI SAI VIKASH & ORS versus UNION OF INDIA & ORS on 2 May 2022

1. The Miscellaneous Application seeks revival of the petition underArticle 32 of the Constitution. The petition was disposed of by an orderEdated 14 March 2022.

2. The grievance in the petition was that there were vacant postgraduate medical seats and a reduction in the percentile fixed for eligibilitywill ensure that more candidates become eligible to fill up the vacancies.

3. The Union Government in the Ministry of Health and FamilyFWelfare[1] took a decision on 12 March 2022 to carry out a reduction of15 percentile across all categories for admission to NEET PG courses.For the general category, the cut-off percentile has been fixed at 35, forthe physically handicapped category at 30 and for the reserved SC/STcategories at 25.G4. Mr Prashant Bhushan, counsel appearing on behalf of thepetitioners, submits that even with the reduction which has been effected,there are still about 1,500 seats which are vacant in the states’ quotaand, hence, if a further reduction of 5 percentile is effected, some morecandidates would be able to gain admission. Moreover, counsel submitted H1 “MoH&FW”

NEPPALI SAI VIKASH & ORS v. UNION OF INDIA & ORS[DR. DHANANJAYA Y CHANDRACHUD, J.]

that in the previous year, there was a reduction of 20 percentile andhence a further reduction of 5 percentile for this year may be consideredbecause of the pandemic.

5 Ms Aishwarya Bhati, Additional Solicitor General, has tendereda statement on behalf of MoH&FW, which is extracted in its entirety forconvenience of reference:

“Mop up Round

A

B

Stray Round

C

*Results to be declared on 2[nd] May 2022. Last day of reporting is7[th] May 2022.

D

** Most of the seats that remain vacant are pre-para. Thesesubjects are teaching subjects and usually remain vacant.

•There are currently 600 seats under counselling for thedeemed universities and the counselling would be completedby 7[th] May2022.

E

•The petitioner has prayed for an additional round of mop-Eup round to be conducted and to permit and facilitate thepetitioners/ applicants and also similarly situated toparticipate in the NEET-PG Counselling 2021 and allot ofthe vacant seats under the available quota for the academicyear 2021-22, from amongst all candidates who appearedFfor the NEET PG 2021 with no qualifyingmark.

•It is pertinent to mention that the current curriculum isalready 4 months behind schedule and the another round ofcounselling is not in the best academic interest of thestudents. Further, the Ministry of Health and Family Welfarehas decided in consultation with the National MedicalCommission has decided that there shall be a reductionacross all categories of 15 percentile for admission to theNEET PG courses. Thus, for the general category, the cut-off percentile is 35, for the physically handicapped generalcategory 30 and for the reserved SC/ST25.

G

H

A•There are around 40,000 seats that are available for NEETPG counselling. 92,000 candidates/doctors were initiallyeligible for counselling for these seats. However, when thepercentile was lowered vide communication dated 12[th] May2022, another 25,000 candidates became eligible. Therefore,there are sufficient candidates that are available forBcounselling for the vacant seats and further lowering ofpercentile would not be in the interest of the public at largebecause the doctors have to deal with life and deathsituations and merit cannot given a completego-by.”

6. The above statement indicates that initially 92,000 candidatesCwere eligible for counselling for nearly 40,000 seats which were availablefor the post graduate courses. After the lowering of the percentile, 25,000more candidates became eligible. A total of 6,206 seats were availablein the mop up round and after 4,747 candidates joined, 1,459 seatsremained vacant. In the stray round, out of 1,459 seats, 1,177 seats havebeen allotted, leaving 282 seats vacant. This data is for the all-IndiaDquota. The results are to be declared on 2 May 2022 and the last datefor reporting is 7 May 2022.

7. The data which has been placed on the record indicates that:

(i) A significant proportion of seats which remain vacant arein “pre-para subjects”: these are teaching subjects whereEseats generally remain vacant;

(ii) The current term is already behind schedule and aconsidered decision has been taken to the effect that holdinganother round of counselling would not be in the bestacademic interest of students; and F(iii)As a result of a reduction of 15 percentile which was alreadymade on 12 March 2022, another 25,000 candidates becameeligible and it may not be in the best interest of medicaleducation to effectuate a further reduction.

8. The counsel for the petitioners relied on the judgment of a two-Judge Bench of this Court in Harshit Agarwal v. Union of India[2],Gwhere the petitioners had sought a direction to lower the minimum marksby 20 percentile in each category for NEET-UG 2020 for admission tothe BDS course. Allowing the writ petition, the decision of the CentralGovernment dated 30 December 2020 to not reduce the minimum marksfor admission to the BDS course was set aside on the ground that it

H2 WP(C) 54 of 2021

suffered from illegality and irrationality. This Court directed that the vacantseats in first year BDS course for 2020-21 were to be filled after reducingthe percentile by 10 points. However, the circumstances were differentin that case. The Dental Council of India had recommended the loweringof the qualifying cut-off percentile to the BDS courses for the year2020-21. The petitioners then submitted a representation to the UnionGovernment seeking a reduction in the qualifying percentile based onthe recommendation of the Dental Council of India. Sub-Regulation (ii)of Regulation II of the Dental Council of India, Revised BDS CourseRegulations 2007 stipulates that the Central Government in consultationwith the Dental Council of India may at its discretion, lower the minimummarks required for admission if a ‘sufficient’ number of candidates failto secure the minimum marks. This Court in that case was deciding onthe limited question of whether the decision of the Union Government tonot reduce the percentile in spite of the recommendations of the DentalCouncil of India was arbitrary. It was observed that the contention ofthe Union of India that the percentile was not reduced because therewere sufficient eligible candidates was erroneous since it had notconsidered vital facts on the ratio of seats available vis-à-vis eligiblecandidates:

“11.The stand of the Central Government is that there are sevencandidates available for each seat and, therefore, there is no needto lower the minimum marks. This calculation of the firstRespondent is without taking into account the fact that NEET(UG) 2020 is conducted for admission into different courses likeMBBS, BDS, UG AYUSH and other medical courses. Admissionsfor UG AYUSH and other UG medical courses are included inthe NEET for the first time from this year. That apart, it is clearfrom the letter of the Dental Council of India that NEET has beenmade mandatory for admission to AIIMS and AIIMS likeinstitutions and ZIPMER. Hitherto, AIIMS and AIIMS likeinstitutions and other institutions like ZIPMERwere conductingtheir own separate entrance test. The total number of seatsavailable for the academic year 2020-2021 for MBBS are 91,367,BDS are 26,949 and AYUSH are 52,720 making it a total of1,71,036 seats. Whereas, the NEET qualified candidates are7,71,500.The ratio of seats available vis-à-vis eligible students is 1: 4.5 and not 7. The basis for the decision to not reduce minimummarks that there are sufficient eligible candidates is withoutconsidering the above vital facts. The decision which materiallysuffers from the blemish of overlooking or ignoring, wilfully or A

B

C

D

E

F

G

H

Aotherwise, vital facts bearing on the decision is bad in law4. Thedecision of the first respondent was propelled by extraneousconsiderations like sufficient number of Dentists being availablein the country and the reasons for which students were not inclinedto get admitted to BDS course which remits in the decisionbeingunreasonable. Consideration of factors other than availability ofBeligible students would be the result of being influenced byirrelevant or extraneous matters. There is an implicit obligation onthe decision maker to apply his mind topertinent and proximatematters only, eschewing their relevant and the remote”

9. The proviso to Regulation 9(3) of the Post-Graduate MedicalEducation Regulations 2000 stipulates that the Central Government hasCthe power to lower the minimum marks for admission to PG courses inconsultation with the National Medical Commission when a sufficientnumber of candidates fail to secure minimum marks. On 12 March 2020,the Central Government in exercise of this power reduced the minimummarks in consultation with the National Medical Commission. After theDstray rounds were conducted on the reduction in the percentile, only 282seats are left vacant. The Union of India has taken a considered decisionto not reduce the minimum marks further. As submitted by the respondent,the vacancy in the seats does not arise from non-fulfillment of minimummarks but also from course preferences and college preferences of thestudents. This Court would not be inclined to interfere unless there is aEmanifest arbitrariness in the decision making process or in the decision.There is no arbitrariness here. Responding to the vacancies, the UnionGovernment took a decision after due consideration, of reducing thepercentile by 15. This Court would not be justified in the exercise of thepower of judicial review to direct a further reduction of 5 percentilesince that would be trenching upon the academic/policy domain. TheFneed for filling up vacant seats, which undoubtedly is a matter of publicinterest has to be balanced with other considerations such as ensuringthat the batch of admitted students commences the course, the standardsof medical education are not diluted and uncertainty is not created byad-hoc reductions in the norms of eligibility. Hence, we find no merit inthe Miscellaneous Application. The Miscellaneous Application isGdismissed.

10. In view of the disposal of the Miscellaneous Application, noorders are required to be passed on the application for impleadmentwhich is accordingly disposed of.

HBibhuti Bhushan Bose

M.A. disposed of.