SHIKHAR & ANR. versus NATIONAL BOARD OF EXAMINATION & ORS. on 5 April 2022

[2022] 6 S.C.R. 918

SUPREME COURT REPORTS

[2022] 6 S.C.R.

SHIKHAR & ANR.

A

v.

NATIONAL BOARD OF EXAMINATION & ORS.

(Writ Petition (C) No. 208 of 2022)

BAPRIL 05, 2022

[DR DHANANJAYA Y CHANDRACHUD,SURYA KANT AND BELA M. TRIVEDI, JJ.]

Education/Educational Institutions: Admission – Eligibilitycriteria – Formulation of eligibility standards for admission is withinCthe domain of executive and regulatory authorities.

Education/Educational Institutions: NEET-PG 2022 –Admission – Writ petition instituted by doctors, aspirants of NEET-PG 2022 challenging the deadline set for completion of internshipfor appearing for NEET-PG 2022 – Students claimed that theDcommencement of internships was delayed due to Covid situationand as a consequence they would not be able to fulfill the cut-offdate and therefore, sought extention of cut-off date to accommodatethem in NEET-PG 2022 – In the alternative, it was alleged that theperiod spent on Covid duties should be allowed to be countedEtowards the internship requirements – Held: The authorities haveprovided cogent reasons as to why the deadline for completing theinternship cannot be extended – An extension of the cut-off anyfurther would result in the disruption of the educational schedule,as indicated to the Court by the Additional Solicitor General –Moreover, students who have qualified in terms of the cut-off ofF31 July 2022 will be prejudiced by the inevitable postponement ofthe schedule – Hence, no such directions can be passed – Thealternative prayer for inclusion of period of Covid duties in theinternship requirements would also involve this Court in micro-managing the curriculum for the completion of medical courses –GThis is a function which should not be assumed by the Court –Hence, though hardship has been caused to those students whoseinternship commenced much later, it would not be possible, at thisstage, to disturb the schedule as it would affect the other studentswho fulfill the cut-off date of 31 July 2022 – Petition under Art.32

H

SHIKHAR & ANR. v. NATIONAL BOARD OF EXAMINATION& ORS.

of the Constitution cannot be entertained – Constitution of India –Art.32.

Dismissing the writ petition, the Court

HELD: 1.1 While the present cut-off date for the completionof the internship would put certain students at a disadvantage, itis the domain of the executive and regulatory authorities toformulate appropriate eligibility standards for admission.Whenever a cut-off is extended, some students are likely to fallon the other side of the dividing line. [Paras 9, 12][923-A; 925-E]

Shivam Satyarthee v. Union of India Writ Petition (C)No. 68 of 2022; Indian Institute of TechnologyKharagpur & Ors. v. Soutrik Sarangi (2021) SCCOnLine SC 826; All India Council for TechnicalEducation v. Surinder Kumar Dhawan (2009) 11 SCC726 : [2009] 3 SCR 859; Rachna v. Union of India &Ors. (2021) 5 SCC 638; State of Bihar v. Ramjee Prasad(1990) 3 SCC 368 : [1990] 2 SCR 468; HirandraKumar v. High Court of Judicature at Allahabad & Anr.(2020) 17 SCC 401 : [2019] 2 SCR 608 – relied on.

1.2 In the present case, cogent reasons have been providedas to why the deadline for completing the internship cannot beextended. An extension of the cut-off any further would result inthe disruption of the educational schedule, as indicated to theCourt by the Additional Solicitor General. Moreover, studentswho have qualified in terms of the cut-off of 31 July 2022 will beprejudiced by the inevitable postponement of the schedule. Hence,it would not be appropriate for this Court to issue any suchdirection. The alternative prayer for the inclusion of the periodof Covid duties in the internship requirements would also involvethis Court in micro-managing the curriculum for the completionof medical courses. This is a function which should not be assumedby the Court. Hence, though hardship has been caused to thosestudents whose internship commenced much later, it would notbe possible, at this stage, to disturb the schedule as it wouldaffect the other students who fulfill the cut-off date of 31 July2022. [Para 14][927-E-H]

A

B

C

D

E

F

G

H

920SUPREME COURT REPORTS

APoulami Mondal & Ors. v. All India Institute of MedicalSciences & Ors. 2022 (6) SCALE 70 – distinguished.

2. Crucially, the case dealt with conducting of anexamination during a pandemic where strict lockdowns were inplace. It did not relate to fixing of a cut-off date, which is bound toBexclude some aspirants and include others. The law is clear thatsuch exclusion will always be incidental to fixing of any cut-offdate and cannot be termed arbitrary. Thus, it would not beappropriate to entertain the petition under Article 32 of theConstitution. [Paras 15 and 16][928-G-H; 929-A-B]

C

Case Law Reference

Under Article 32 of The Constitution of India.EGopal Sankaranarayanan, Sr. Adv., Dr. Charu Mathur, SanjayKumar Dubey, Ms. Tanvi, Ms. Ishita Chowdhury, Advs. for thePetitioners.

Ms. Aishwarya Bhati, ASG, B. K. Satija, Rajat Nair, SandeepFKumar Mahapatra, Ketan Paul, Aman Sharma, Raj Bahadur Yadav, Advs.for the Respondents.

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

G1. The petition under Article 32 of the Constitution has beeninstituted by doctors who are aspirants of NEET- PG 2022. They havechallenged the deadline set for the completion of internship for appearingfor NEET-PG 2022. The facts which give rise to the present petition areset out below.

H1 “Information Bulletin”

2. On 15 January 2022, the first respondent released the NEET-PG 2022-23 Information Bulletin[1] providing the examination scheduleand eligibility criteria. Clause 4.4 of the Information Bulletin stipulatesamongst the eligibility criteria that the internship completion certificatehas to be submitted at the time of counselling/admission to the allottedmedical college and that the internship should have been completed by31 May 2022.

3. On 8 February 2022, this Court, while considering a petition[2]under Article 32 of the Constitution, permitted the petitioners, who wereseeking a postponement of the internship deadline, to submit arepresentation before the Union Ministry of Health and Family Welfare.This Court observed:

“The issue which has been raised by the petitioners requires adetermination of facts bearing on the position in different parts ofthe country. Prescribing a cutoff date pertains to the policy domain.The ends of justice would be met by permitting the petitioners tosubmit a representation to the Union Ministry of Health and FamilyWelfare setting out the nature of the hardship which has beenfaced by the petitioners and similarly placed candidates. Therepresentation shall be considered expeditiously, within a periodof one week of the date of its submission, by the competentauthority. Since the Court is leaving it open to the petitioners tomove the MoHFW with a representation, no opinion has beenexpressed by this Court on the merits of the grievance at thepresent stage.”

4. After considering the representations which were received,the National Board of Examination issued a notice on 16 February 2022extending the cut-off date for completion of internship to 31 July 2022 tofulfill the eligibility criteria for the NEET-PG examination. The petitionersare aggrieved by the revised cut-off date and have invoked the jurisdictionof this Court under Article 32 of the Constitution.

5. The grievance of the petitioners is that the extension of the cut-off from 31 May to 31 July 2022 would still leave out students fromcertain States who are unable to complete their internships by the cut-off date. It has been submitted that on 3 May 2021, the Union Governmentin the Ministry of Health and Family Welfare had authorized the States/

2 Shivam Satyarthee v Union of India, Writ Petition (C) No 68 of 2022

A

B

C

D

E

F

G

H

AUTs to deploy medical interns in Covid management duties. Besidesthis, it was envisaged that the services of final year MBBS studentsmay be utilized for providing services such as tele-consultation andmonitoring of mild Covid cases.

6. Mr Gopal Sankaranarayanan, senior counsel appearing on behalfBof the petitioners, submitted that in certain States, the internships ofmedical students commenced later as a result of the deployment of finalyear medical students on Covid duties. For instance, it has been statedthat in Kerala, the internships commenced in August 2021, in Bihar inOctober 2021, in Jharkhand in August 2021, in Uttar Pradesh inSeptember 2021 and in Jammu and Kashmir in November 2021. TheCsubmission is that the commencement of the internships was delayed inthese States due to the Covid situation and as a consequence, thesestudents would not be able to fulfill the cut-off date of 31 July 2022.Hence, it has been urged that the cut-off date should be extended furtherto accommodate these students for the NEET-PG 2022. In the alternative, Dit has been urged that the period spent on Covid duties should be allowedto be counted towards the internship requirements.

7. Having due regard to the above submission, this Court had on30 March 2022 requested the Solicitor General to assist the Court afterseeking the views of the Ministry of Health and Family Welfare.EMs Aishwarya Bhati, Additional Solicitor General has in the course ofher submissions placed before the Court the practical difficulties inacceding to the request of the petitioners and the cascading effect if thesubmission of the petitioners is accepted. The Additional Solicitor Generalstated that the examinations are now scheduled to be held on 21 May2022; counselling will be expected to commence in the third or fourthFweek of July 2022; and, under the time schedule which is proposed,classes are likely to commence on 1 August 2022. Hence, it has beensubmitted that any extension of the internship completion deadline wouldresult in the disruption of the entire schedule. Moreover, it has beensubmitted that if the time schedule which is now prescribed is adheredGto, the next examination is likely to be held in January 2023.

8. Responding to the alternative submission of Mr GopalSankarnarayanan that the period which has been spent on Covid dutiesshould be treated towards the internship requirements, the AdditionalSolicitor General submitted that Covid duties do not cover all specialtiesand, hence, the acceptance of this request would result in tinkering withHthe educational curriculum.

9. While we understand that the present cut-off date for thecompletion of the internship would put certain students at a disadvantage,we are conscious that it is the domain of the executive and regulatoryauthorities to formulate appropriate eligibility standards for admission.In Indian Institute of Technology Kharagpur & Ors. v. SoutrikSarangi[3], a three-judge Bench of this Court held that courts should becircumspect in exercising their powers of judicial review in mattersconcerning academic policies, including admission criteria. In that case,this Court refused to interfere with the eligibility criteria for appearing inJEE (Advanced) 2021 which prevented a candidate who had secured aseat in one of the IITs from competing in a subsequent examination.This Court relied on All India Council for Technical Education v.Surinder Kumar Dhawan[4], where it was observed that judicialinterference motivated by concerns of mitigating the hardship faced bystudents may result in unintended consequences adversely affecting theeducation system. This Court held thus:

“19. The reasoning of the High Court of Criterion 5 not permittingIIT students to participate in IIT (Advanced) for the second timebeing arbitrary, in the opinion of this Court is not supportable.This Court has repeatedly emphasized that in matters suchas devising admissions criteria or other issues engagingacademic institutions, the courts’ scrutiny in judicial reviewhas to be careful and circumspect. Unless shown to be plainlyarbitrary or discriminatory, the court would defer to the wisdomof administrators in academic institutions who might devise policiesin regard to curricular admission process, career progression oftheir employees, matters of discipline or other generaladministrative issues concerning the institution or university[5]. Itwas held by this court in All India Council for Technical Educationv. Surinder Kumar Dhawan[6]

“16. The courts are neither equipped nor have the academicor technical background to substitute themselves in place ofstatutory professional technical bodies and take decisions inacademic matters involving standards and quality of technicaleducation. If the courts start entertaining petitions fromindividual institutions or students to permit courses of 3 2021 SCC OnLine SC 826

4 (2009) 11 SCC 726

AB

C

D

E

F

G

H

A

their choice, either for their convenience or to alleviatehardship or to provide better opportunities, or becausethey think that one course is equal to another, withoutrealizing the repercussions on the field of technicaleducation in general, it will lead to chaos in educationand deterioration in standards of education.”

B

20. Given this general reluctance of courts to substitute the viewsof academic and expert bodies, the approach of the High Court inproceeding straightaway to characterize the rationale given bythe IIT in fashioning the Criteria No. 5 cannot be supported.”

(emphasis supplied)

C

10. In Rachna v. Union of India & Ors.[5] a petition under Article32 of the Constitution was instituted before this Court with a prayer togrant one additional attempt to clear the Civil Services (Preliminary)Examination 2020 to petitioners who were otherwise not eligible toDparticipate in subsequent examinations due to their exhausting availableattempts or because of crossing the age bar. The petitioners pleadedthat on account of the unprecedented Covid-19 pandemic, they had faceddifficulties in preparing for the examination. The petitioners also arguedthat the government had previously granted such a relaxation in 2015.This Court dismissed the petition and held that policy decisions are takenEby the executive considering the prevailing circumstances. The Courtfurther observed that the petitioners cannot invoke the writ jurisdictionof the Court to direct the government to come out with a specific policygranting relaxation to certain candidates as a matter of right. The followingobservations of this Court are relevant:F“45. Judicial review of a policy decision and to issue mandamusto frame policy in a particular manner are absolutely different. Itis within the realm of the executive to take a policy decision basedon the prevailing circumstances for better administration and inmeeting out the exigencies but at the same time, it is not withinGthe domain of the courts to legislate. The courts do interpret thelaws and in such an interpretation, certain creative process isinvolved. The courts have the jurisdiction to declare the law asunconstitutional. That too, where it is called for. The court is calledupon to consider the validity of a policy decision only when a H5 (2021) 5 SCC 638

challenge is made that such policy decision infringes fundamentalrights guaranteed by the Constitution or any other statutory right.Merely because as a matter of policy, if the 1st respondent hasgranted relaxation in the past for the reason that there was achange in the examination pattern/syllabus and in the given situation,had considered to be an impediment for the participant in the CivilServices Examination, no assistance can be claimed by thepetitioners in seeking mandamus to the 1st respondent to comeout with a policy granting relaxation to the participants who hadavailed a final and last attempt or have crossed the upper age byappearing in the Examination 2020 as a matter of right.”

11. In the previous proceedings when this Court passed an orderdated 8 February 2022, the Court was conscious of the fact that anyextension of cut-off dates pertains to the policy domain. The decisionwas hence left to the expert agencies of the Union of India. However,having regard to the hardship which was faced by the petitioners andsimilarly placed persons, we left it open to them to submit a representationto the Union Government. Responding to the request, an extension ofthe cut-off date has been granted from 31 May 2022 to 31 July 2022.

12. Whenever a cut-off is extended, some students are likely tofall on the other side of the dividing line. In State of Bihar v. RamjeePrasad[6], the State had prescribed that applicants applying for the postof Assistant Professors must have three years of experience. In thepreceding year, the cut-off date for the receipt of applications was set inJune, however, in the year in question, the date was fixed in Januarymaking certain candidates ineligible owing to their failure to meet thethree-year requirement. This Court held that the cut-off date cannot beheld to be arbitrary unless it is shown that it is unreasonable, capriciousor whimsical even if no reasons are forthcoming as to the choice ofdate. This Court observed thus:

“8. In the present case as pointed out earlier the past practicewas to fix the last date for receipt of applications a month or oneand a half months after the date of actual publication of theadvertisement. Following the past practice the State Governmentfixed the last date for receipt of applications as January 31, 1988.Those who had completed the required experience of three years 6 (1990) 3 SCC 368

A

B

C

D

EF

G

H

Aby that date were, therefore, eligible to apply for the posts inquestion. The respondents and some of the intervenors who werenot completing the required experience by that date, therefore,challenged the fixation of the last date as arbitrary and violativeof Article 14 of the Constitution. It is obvious that in fixing the lastdate as January 31, 1988 the State Government had only followedBthe past practice and if the High Court’s attention had been invitedto this fact it would perhaps have refused to interfere since itsinterference is based on the erroneous belief that the past practicewas to fix June 30 of the relevant year as the last date for receiptof applications. Except for leaning on a past practice the HighCCourt has not assigned any reasons for its choice of the date. Aspointed out by this Court the choice of date cannot bedubbed as arbitrary even if no particular reason isforthcoming for the same unless it is shown to be capriciousor whimsical or wide off the reasonable mark. The choiceof the date for advertising the posts had to depend onDseveral factors, e.g. the number of vacancies in differentdisciplines, the need to fill up the posts, the availability ofcandidates, etc. It is not the case of anyone that experiencedcandidates were not available in sufficient numbers on the cut-offdate. Merely because the respondents and some othersEwould qualify for appointment if the last date for receipt ofapplications is shifted from January 31, 1988 to June 30,1988 is no reason for dubbing the earlier date as arbitraryor irrational. We are, therefore, of the opinion that the HighCourt was clearly in error in striking down the government’s actionof fixing the last date for receipt of applications as January 31,F1988 as arbitrary.”

A

D

(emphasis supplied)

13. Recently in Hirandra Kumar v. High Court of Judicatureat Allahabad & Anr.[7], a two-judge Bench of this Court, of which oneGof us (DY Chandrachud, J) was a part held that the cut-off date or anage limit does not become arbitrary and violative of Article 14 of theConstitution merely because certain candidates fall on the wrong side ofit. A cut-off date or an age bar would always exclude some candidates.This Court emphasised that the determination of the cut-off date is within H7 (2020) 17 SCC 401

the sphere of the executive and the court cannot assume that function.This Court observed:

“21. The legal principles which govern the determination of a cut-off date are well settled. The power to fix a cut-off date or age-limit is incidental to the regulatory control which an authorityexercises over the selection process. A certain degree ofarbitrariness may appear on the face of any cut-off or age-limitwhich is prescribed, since a candidate on the wrong side of theline may stand excluded as a consequence. That, however, is noreason to hold that the cut-off which is prescribed, is arbitrary. Inorder to declare that a cut-off is arbitrary and ultra vires, it mustbe of such a nature as to lead to the conclusion that it has beenfixed without any rational basis whatsoever or is manifestlyunreasonable so as to lead to a conclusion of a violation of Article14 of the Constitution.

27….the validity of the Rule cannot be made to depend on casesof individual hardship which inevitably arise in applying a principleof general application. Essentially, the determination of cut-offdates lies in the realm of policy. A court in the exercise of thepower of judicial review does not takeover the function for itself.Plainly, it is for the rule-making authority to discharge that functionwhile making the Rules.”

14. In the present case, cogent reasons have been provided as towhy the deadline for completing the internship cannot be extended. Anextension of the cut-off any further would result in the disruption of theeducational schedule, as indicated to the Court by the Additional SolicitorGeneral. Moreover, students who have qualified in terms of the cut-offof 31 July 2022 will be prejudiced by the inevitable postponement of theschedule. Hence, it would not be appropriate for this Court to issue anysuch direction. The alternative prayer for the inclusion of the period ofCovid duties in the internship requirements would also involve this Courtin micro-managing the curriculum for the completion of medical courses.This is a function which, in our view, should not be assumed by theCourt. Hence, though hardship has been caused to those students whoseinternship commenced much later, it would not be possible, at this stage,to disturb the schedule as it would affect the other students who fulfillthe cut-off date of 31 July 2022.

A

B

C

D

E

F

G

H

A15. The petitioners have sought to rely on an order of this Court inPoulami Mondal & Ors. v. All India Institute of Medical Sciences& Ors.[8]where the Institute of National Importance Combined AdmissionTest (INI CET) for admission to the Post Graduate courses for the July2021 session was directed to be postponed by this Court. Theconsideration that weighed with this Court, inter alia, was that owing toBthe lockdown in several states, it would have been virtually impossiblefor candidates to reach the examination centres. Further, it was observedthat many of the doctors who would be appearing for the examinationwere exposed to Covid-19 and would have to quarantine and isolatethemselves. There was also an apprehension that conducting theCexamination at that time could lead to the spread of the virus. The relevantobservations are reproduced below:

“The attention of the court has also been drawn to news reportsof extensions of lock down, in many States. It is reported that inOdisha lock down has been extended till 16th June, 2021. InDMaharashtra and Andhra Pradesh and also in Kolkata, the lockdown has been extended till 15th June, 2021. It would be extremelydifficult, if not virtually impossible for many candidates for theINI CET to reach their examination centres from their places ofduty. Many of the doctors are exposed to and are running the riskof contracting Covid 19 and they may have to isolate and/orEquarantine themselves. Even otherwise holding the INICET on16[th] June, 2021 will result in spread of the virus and increase inCovid19 cases.

Having regard to the circumstances, pleaded, fixing of the INICET on 16.06.2021 is arbitrary and discriminatory, more so sinceFother important examinations including Joint EntranceExaminations, Board Examinations etc. have been postponed.

The impugned notice is, therefore, set aside. The INI CET isdirected to be postponed by at least a month from 16th June,2021.”GThe factual matrix that led to the postponement of INI CET wascompletely different from the present circumstances. Crucially, the casedealt with conducting of an examination during a pandemic where strictlockdowns were in place. It did not relate to fixing of a cut-off date, H8 Writ Petition (s) (Civil) No(s). 623 of 2021

which is bound to exclude some aspirants and include others. The law isclear that such exclusion will always be incidental to fixing of any cut-off date and cannot be termed arbitrary.

16. Thus, on a considered view of the matter, it would not beappropriate to entertain the petition under Article 32 of the Constitution.The petition is accordingly dismissed.

17. Pending application, if any, stands disposed of.

Devika Gujral

Writ Petition dismissed.

A

B

C

D

E

F

G

H