NEIL AURELIO NUNES & ORS. versus UNION OF INDIA & ORS. on 7 January 2022

1. There is a challenge, in this batch of petitions under Article 32of the Constitution, to a notice which was issued by the DirectorateGeneral of Health Services in the Union Ministry of Health and FamilyWelfare on 29 July 2021. The notice implements a 27 per cent reservationfor Other Backward Classes[1] (non-creamy layer) and a 10 per centreservation for the Economically Weaker Section,[2] while filling up 15per cent undergraduate and 50 per cent post-graduate[3] All India Quota[4]seats in pursuance of the National Eligibility cum Entrance Test[5]. Thenotice takes effect from the current admission year, 2021-2022. Thepetitioners are doctors who appeared in the NEET- PG 2021 examination.

2. The petitions were instituted on 24 August 2021 to challengethe validity of the notice dated 29 July 2021. Notice was issued by thisCourt on 6 September 2021. The NEET-PG results were announced on28 September 2021. Arguments were heard in part on 7 October 2021.It was argued that there cannot be any reservation for the OBC and 1 “OBC”

2 “EWS”

3 “PG”

4 “AIQ”

5 “NEET”

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B

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G

H

AEWS category in the AIQ seats in NEET-PG and that the criteria forthe determination of the EWS category notified by O.M 36039/1/2019[6]was unconstitutional. By an order dated 21 October 2021, this Courtsought clarifications in regard to the criteria provided by the OM of 2019of using Rs 8 lakhs as the cut - off income limit for identifying EWS.Two weeks were granted to the Union Government to file an affidavit inBthis regard. When the batch was taken up for hearing on 21 October2021, the Union Government had not filed the affidavit. The ASG, MrKM Nataraj informed this Court that an affidavit will be filed within twodays. By an order dated 21 October 2021, this Court then formulatedissues requiring the Union Government to disclose the rationale for theCadoption of the criteria used to identify the EWS. On 25 October 2021,the Union Government of its own accord deferred the counselling due tothe pendency of the petitions. Thereafter, the Union Government filedan affidavit justifying the EWS criteria on 26 October 2021 stating thatthe criteria was adopted after due deliberation within the Ministry ofSocial Justice and Empowerment and all the concerned stakeholders.D

3. When the matter was listed for hearing on 28 October 2021,the Solicitor General sought an adjournment and requested that thepetitions be heard after Diwali. On 25 November 2021, this Court wasinformed by the Solicitor General that the Union Government has takena considered decision to revisit the criteria for determining the EWS andErequested four weeks to complete this exercise, which was acceded toby this Court. The Union Government formed a Committee[7] on 30November 2021 to review the criteria for identifying EWS. TheCommittee submitted its report on 31 December 2021. Thereafter, theUnion Government filed an affidavit before this Court accepting theFrecommendations of the Committee including the recommendation thatthe existing criteria for identifying EWS be retained for the presentadmission year 2021-2022.

4. The petitions were taken up for urgent hearing by this Court on5 January 2022 after a request was made by the Solicitor General. ItGwas submitted on behalf of the Union Government that the OBC andEWS reservation (with the old criteria according to OM 2019) be allowedto be implemented for the current admission year of 2021.

6 “OM 2019“H7 “Pandey Committee”

5. We have heard Mr, Arvind Datar, Mr Shyam Divan and MrAnand Grover, Senior Counsel and Mr Shrirang Choudary, Ms. ArchanaPathak Dave, Mr Apoorva Karol, Mr Subodh Patil and Mr Varun Thakurfor the doctors and intervenors challenging the validity of the reservationsfor OBC and EWS categories. On the other side, we heard Mr TusharMehta, Solicitor General, Mr. Nataraj, Additional Solicitor General, Mr PWilson for the Dravida Munnetra Kazhagam, Mr Mariarputham for theState of Tamil Nadu, and Mr Biju and Mr. Shashank Ratnoo for theintervenors.

A

B

6. The submissions which have been urged before this Court overa span of two days necessitate a detailed interim order on the applicabilityof the EWS criteria as notified by OM 2019 for NEET-PG 2021. Theformulation of the reasons in the interim order on the EWS reservationwould take some time. The validity of the OBC reservation in the AIQseats in NEET-PG and NEET-UG is upheld for reasons to follow. In themeantime, there is an urgent need to commence the process ofCounselling. We are hence issuing the following operative directions atthis stage :

C

D

7. (i) We accept the recommendation of the Pandey Committeethat the criteria which have been stipulated in OM 2019 beused for 2021-2022 in order to ensure that the admissionprocess is not dislocated;E

(ii) Counselling on the basis of NEET-PG 2021 and NEET-UG 2021 shall be conducted by giving effect to thereservation as provided by the notice dated 29 July 2021,including the 27 per cent reservation for the OBC categoryFand 10 per cent reservation for EWS category in the AIQseats;

(iii) The criteria for the determination of the EWS notified byOM 2019 shall be used for identifying the EWS categoryfor candidates who appeared for the NEET-PG 2021 andGNEET-UG 2021examinations;

(iv) The validity of the criteria determined by the PandeyCommittee for identification of EWS would prospectivelyfor the future be subject to the final result of the petitions;and H

974SUPREME COURT REPORTS

[2022] 1 S.C.R.

A(v)The petitions shall be listed for final hearing on the validityof the EWS criteria as recommended by the PandeyCommittee in the third week of March 2022.

8. Reasons shall follow.

B

Divya Pandey

(Assisted by : Roopanshi Virang, LCRA)

Directions issued.

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