Delhi High Court
Dr Vishal Dahiya And Ors vs The Medical Counselling ... on 15 February, 2022
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on:- 11.02.2022
Date of Decision:-_15.02.2022.
+ W.P.(C) 992/2022 & CM APPL. 3420/2022 (stay)
DR VISHAL DAHIYA AND ORS ..... Petitioners
Through Mr. Krishnan Venugopal, Sr. Adv.
with Mr. Shivendra Singh, Mr. Gaurav
Ray, Mr. Kaushik Mishra and Ms.
Pallavi Srivastava, Advs.
versus
THE MEDICAL COUNSELLING COMMITTEE
MCC & ANR. ..... Respondents
Through Mr. Kirtiman Singh, Mr. Waize Ali
Noor, Mr. Syed Hussain Taqvi, Ms.
Srirupa Nag, Advs. for R-1
Ms. Anita Sahani, Adv. for R-2
Dr. Charu Mathur, Adv. for interveners
CORAM:
HON'BLE MS. JUSTICE REKHA PALLI
REKHA PALLI, J
JUDGMENT
1. The Petitioners who are candidates falling in the Delhi OBC list have
approached this Court under Article 226 of the Constitution of India,
assailing the notice dated 10.01.2022, issued by the Medical Counselling
Committee (hereinafter referred to as 'the MCC'), whereby OBC reservation
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criteria has been modified with regard to Institutional Preference Seats in the
Central Institutes.
2. The MCC, which is respondent no.1, is an organization under the
Directorate General of Health Services (hereinafter referred to as 'DGHS')'.
The MCC is responsible for online allotment of seats for undergraduate,
postgraduate and super-specialty medical and dental courses in government-
run/aided colleges and deemed-to-be-university colleges on the basis of the
candidates' score in the National Eligibility cum Entrance Test (hereinafter
referred to as 'NEET'). The factors which are considered during allotment are
merit, reservation eligibility and the preference list submitted by the
candidates. Guru Gobind Singh Indraprastha University (hereinafter referred
to as 'GGSIPU'), formerly known as 'Indraprastha University', which is a state
teaching-cum-affiliating university, located in the NCT has been arrayed as
respondent no. 2 in the present petition.
3. On 23.02.2021, the National Board of Examination in Medical
Sciences (hereinafter referred to as 'NBEMS'), which is an autonomous body
under the Ministry of Health and Family Welfare (hereinafter referred to as
'MoHFW) established with the objective of standardizing postgraduate
medical education and examination in India, published the NEET-PG, 2021
bulletin outlining the schedule and criteria for the common entrance exam,
based on which the counselling for admission to medical colleges takes place
all over the country. Thereafter, the respondent no.2/University issued its
General Admission Brochure (hereinafter referred to as 'the brochure') on
10.06.2021, wherein it laid down the criteria for reservation in the OBC
category, a detailed reference whereto will be made at a later stage in the
judgment.
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4. Thereafter, on 29.07.2021, a circular was issued by the DGHS, wherein
it was provided that there would be 27% of reservation for OBCs (non-
creamy layer) and 10% reservation for EWS in the 15% undergraduate and
50% postgraduate seats in the All India Quota (hereinafter referred to as
'AIQ') for the academic year 2021-22. This notification was challenged
before the Apex Court by way of a writ petition titled "Neil Aurelio Nunes
and others v. Union of India and others" W.P.(C) 961/2021, wherein the
Apex Court passed its preliminary interim order on 07.01.2022, permitting
the counselling for the NEET-PG 2021 to commence forthwith.
5. The NEET-PG Exam, which was initially to be held in April, 2021
was, however, postponed due to an upsurge in Covid-19 cases, and was
subsequently, held on 11.09.2021, the results whereof were declared on
28.09.2021. Soon after the declaration of the results, the MCC on 03.10.2021,
published its Information Bulletin for the counselling to be held for
admissions to the PG medical courses.
6. It is the petitioners' case that both, under the brochure issued by
respondent no.2 on 10.06.2021, and the Information Bulletin issued by the
MCC on 03.10.2021, they, as OBC candidates in terms of the list maintained
by the Govt. of NCT of Delhi, were eligible for admission against the OBC
seats in the 50% institutional preference seats.
7. Pursuant to the interim order dated 07.01.2022 passed by the Apex
Court in Neil Aurelio Nunes (supra), the respondent no. 1 on 10.01.2022
notified the time schedule for counselling. As per this notice, the registration
and payment by candidates for counselling was to commence on 12.01.2022.
For the sake of convenience, the relevant extract of the counselling schedule
reads as under:-
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Signed By:GARIMA MADAN
Signing Date:15.02.2022
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SCHEDULE FOR ONLINE PG COUNSELING (MD/ MS/ DIPLOMA/ PG DNB
Courses) FOR NEET 50% AIQ/ 100% DEEMED/CENTRAL
UNIVERSITIES/AFMS (only Registration Part) and 100% PG DNB SEATS FOR
THE ACADEMIC YEAR 2021
1st Round
SL Verific Registration/ Choice Verificatio Processing Result Reporti
.N ation Payment Filling/ n of of Seat ng
o. of Seat Locking Internal Allotment
Matrix Candidate
by s by the
Institut respective
es Universiti
es/
Institutes
1. 7th 12th January, Choice 18th 20th 22nd 23rd
January 2022 to 17th Filling January, January, January January,
, January, :13th 2022 to 2022 to 21st , 2022 to
2022 to 2022 up to January 19th January, 2022 28th
10th 12:00 to 17th January, 2022 January,
January NOON ( as January, 2022 2022
, per Server 2022 (up
2022 Time) to 11:55
Payment PM) as
facility will per
be Server
available up Time
to 03:00 PM Choice
of Locking
17th from
January,2022 04:00
as per PM of
Server Time 17.01.20
22 to
11:55
PM of
17.01.20
22 as per
Server
Time
(6-Days) (5-Days) (2-Days) (2-Days) (1-Day) (06-
Days)
2nd Round
2. 1st 3rd February, Choice 8th 10th February, 12th 13th
Febr 2022 to 7th Filling : February, 2022 to 11th February, February,
2022 to February, 2022 2022 to
uary, February, 4th 9th 2022 19th
2022 2022 February February, February,
to upto12:00 , 2022 to 2022 2022
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Signing Date:15.02.2022
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2nd NOON as per 7th
Febr Server Time February
uary, * , 2022
2022 Payment (till
facility will 11:55
be PM) as
available up per
to 03:00 PM Server
of Time
7th February, Choice
2022 as per Locking
Server Time from
04:00
PM to
11:55
PM of
7th
February
, 2022,
as per
Server
Time
(5-Days) (4-Days) (2-Days) (2-Days) (1- (07-
Days) Days)
MOP-UP ROUND FOR ALL INDIA QUOTA/DEEMED AND CENTRAL
UNIVERSITY SEATS/PG DNB SEATS
SL. Veri- Registration/ Choice Verificat- Processing Result Reporti
No. ficat- Payment Filling/ ion of of Seat ng
ion Locking Internal Allotment
of Candidates
Seat by the
Matrix respective
by Universiti
Insti- es/
tutes Institutes
3. 22nd 24th Choice 1st March, 3rd March, 5th 6th
Febr February, Filling : 2022 to 2022 to March, March,
uary, 2022 to 28th 25th 2nd 4th March, 2022 2022
2022 February, Februar, March, 2022 to 10th
to 2022 (12:00 2022 to 2022 March,
23rd NOON 28th 2022
Febr as per Server Februar,
uary, Time) * 2022
2022 Payment (11:55
facility will P.M
be up to as per
03:00 PM Server
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Signing Date:15.02.2022
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of 28th Time)
February, Choice
2022 as per Locking
Server Time from
04:00
PM to
11:55
PM on
28th
February
, 2022 as
per
Server
Time
(5-Days) (5-Days) (2-Days) (2-Days) (1-Day) (05-
Days)
8. On the same date, the respondent no.1 posted another notice on its
website titled "Salient points regarding changes in PG 2021", wherein the
differences in the counselling and the admission guidelines for the NEET-PG
2021 vis-a-vis the NEET-PG 2020 were notified. The relevant extract
thereof reads as under:
"Urgent Attention Candidates/Institutions of NEET-PG:
The Counselling for NEET-PG is scheduled to commence from
12/01/2022. However, the following changes/modifications in the
counselling scheme will be implemented from the academic year 2021-
22:
S. No. NEET-PG NEET-PG Counselling
Counselling up to 2021
2020 Onwards
1. 2 rounds of AIQ counselling 4 rounds of AIQ counselling
AIQ Round 1 AIQ Round 1
AIQ Round 2 AIQ Round 2
Seats reverted back to AIQ Mop-up Round
the respective States
after completion of AIQ Stray Vacancy
round 2 of AIQ. Round
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No seat will be reverted
back to the
respective States after
completion of
round 2 of AIQ.
2. Unfilled NRI/Muslim Unfilled NRI/Muslim
Minority/Jain Minority/Jain Minority
Minority seats are seats to be converted to
reverted to the Indian National seats after
Deemed Universities exhaustion of all the
after completion of eligible NRI/Muslim
Mop-Up Round for Minority/Jain Minority
conduction of Stray Candidates during the
Vacancy Round by Mop-Up Round before
Deemed Universities. reverting it back to the
respective Deemed
University.
3. Reservation Policy of Reservation Policy of AIQ
AIQ: for
S.C.- 15% Central
S.T.- 7.5% Institutes/University as well
O.B.C.- (Non- as State contributed seats:
Creamy S.C.- 15%
Layer) S.T.- 7.5%
as per the Central O.B.C.- (Non-
OBC list- 27% (Only Creamy Layer) as
in Central per the Central
Institutes/ University) OBC list- 27%
EWS- as per EWS- as per
Central Central
Government Government norms-
norms- 10% 10%
(Only PwD- Horizontal
in Central Reservation as per
Institutes/Univ NMC norms- 5%
ersity)
PwD-
Horizontal
Reservation as
per
NMC norms-
5%
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Signing Date:15.02.2022
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9. It is the common case of the parties that a revised counselling
Information Bulletin was issued by the respondent no. 1 on the same date,
i.e., 10.01.2022. This bulletin was however, followed by yet another revised
bulletin, issued by respondent no. 1 on 12.01.2022. On both of these
occasions, not only was the clause dealing with the reservation policy for
central institutes including Vardhaman Mahavir Medical College &
Safdarjung Hospital, Atal Bihari Vajpayee IMS & RML, ESIC Basaidarapur
changed, but, the answer to FAQ No. 50 was also changed in the revised
bulletin issued on 12.01.2022. As per this policy, OBC reservation for PG
against institutional preference seats was now restricted only to candidates in
the central OBC list. Consequently, candidates like the petitioners who were
falling in the Delhi OBC list were excluded from being considered for these
reserved seats. This was in contradiction to the policy followed in NEET-PG
2020 when candidates in Delhi OBC were eligible for admission in the
institutional preference seats.
10. Aggrieved by this exclusion, the petitioners approached this Court on
14.01.2022, on which date, the matter was adjourned to 17.01.2022. On the
said date, this Court was informed that in view of the clarification issued on
10.01.2022 as also the fact that the choice filling by the candidates was to
begin on 13.01.2022, a notice had been issued on 15.01.2022 providing an
option to the candidates to change their category to unreserved from
SC/ST/OBC/EWS/PwD, so as to enable them to participate as an unreserved
candidate in the counselling process. This option was open till 18.01.2022. It
has been jointly submitted by the parties that the petitioners have exercised
this option, and already participated in the first round of counselling as
unreserved candidates. As per the respondents, about 1200 candidates have
changed their category and many of them, including some of the petitioners
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herein, have been allotted seats in postgraduate courses, where they have
already joined.
11. The petitioners' challenge to the impugned notification dated
10.01.2022 is primarily based on two grounds, the first being, that the
respondent no.1 has changed the 'rules of the game' after the commencement
of the counselling and that too, just before when the candidates were required
to fill their choices on 13.01.2022. The second being that the medical
colleges in question, i.e., VMMC and ABVIMS are not central educational
institutions within the meaning of section 2 (d) of the Central Educational
Institutions (Reservation in Admissions) Act, 2007 (hereinafter referred to as
'CEI Act') and, therefore, the MCC has no authority in law to deprive the
Delhi OBC candidates of their right to be considered under the Delhi OBC
quota against the 50% institutional preference seats of respondent
no.2/University.
12. In support of the petition, learned senior counsel for the petitioners,
Mr. Venugopal submits, that, since it is an admitted position that the
amendment in FAQ No. 50, which provided that only candidates from the
Central OBC List would be eligible to apply for the seats in the OBC
category, was published only a day before the counselling process was
scheduled to commence, the Delhi OBC candidates were left in the lurch and
it was evident that the 'rules of the game' had been changed after the game
had already begun'.
13. He contends that the General Admissions Brochure issued by the
respondent no.2 and the 'Information Bulletin and Counselling Scheme', is a
document of importance, which is extremely vital for the prospective students
to take decisions regarding the applications, was first published in October
2021. Thereafter, the petitioners herein, decided to apply under the OBC
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category seats, and until 12.01.2022, the petitioners had no reason to believe
that there would be any change in the admission policy, especially at this
stage of the counselling process. A policy decision such as this, which was
likely to impact a large number of OBC candidates, ought to have been taken
well in advance and widely published so that the candidates would not be
caught off-guard and would have been in the position to take appropriate
action in order to give themselves the best chance of succeeding. As it is, the
petitioners were under the impression that they will be able to register for
GGSIPU's institutional quota seats as Delhi OBC candidates. He claims that
this issue is squarely covered by the decision of this Court in Ankita
Chaudhary v. GGSIPU 2016 SCC OnLine Del 3025, wherein, while dealing
with a similar issue, concerning a policy issued at variance with the policy for
the earlier academic session after the commencement of the admission
process, it was held that the action of the university amounted to changing
'the rules of the game' after the game had already begun. He further submits
that like the present case, the change was introduced just before the
commencement of counselling, which the Court held was not permissible.
14. He further submits that this approach has been denounced by this Court
as well as by the Apex Court in a plethora of judgements and therefore,
cannot be countenanced. In support of this plea, he relies on a decision in the
case of "Maharashtra State Road Transport Corporation and others. V.
Rajendra Bhimrao Mandve and others", (2001) 10 SCC 51, wherein, the
Apex Court held that the 'rules of the game', i.e., the criteria for selection
cannot be altered by the authorities in the middle or after the process of
selection has already commenced. He also places reliance on "K. Manjusree
v. State of A.P. and Ors." (2008) 3 SCC 512 and on "Hemani Malhotra v.
High Court of Delhi" (2008) 7 SCC 11, wherein, this Court reiterated that
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changing the rules of the game after the game has already begun, is
unacceptable.
15. Mr. Venugopal then submits that the two institutes in question, i.e.,
VMMC and ABVIMS, which are claimed to be central institutes are, in fact,
State institutes, in respect whereof the respondent no.1 had no authority to
tinker with the reservation policy of the respondent no.2/University to which
the institutions in question are affiliated. He submits that the central
educational institutes have been defined under Section 2(d) of the Central
Educational Institution (Reservation in Admission) Act, 2006 and none of
these institutes fulfil the criteria prescribed therein.
16. He submits that the two institutes - VMMC and ABVIMS being
affiliated to the GGSIPU, which is a State University, would, therefore, fall
under the category of State institutes. The candidates in the Delhi OBC list
would, therefore, be entitled to be considered against the institutional
preference seats and were always being extended this benefit, which has now
been sought to be arbitrarily withdrawn. He submits that the very purpose of
a State OBC list is to grant benefit of OBC reservation to candidates in the
institutes in the State, but the respondent no.1 erroneously treating these
institutions as Central educational institutes, is wrongly restricting the benefit
of OBC reservation in the State institutional seats only to the candidates in
the Central OBC List.
17. By placing reliance on the decision of the Apex Court in "Jaishri
Laxmanrao Pattil v. Chief Minister, State of Maharashtra" (2021) 8 SCC
1, he submits that the 105th amendment to the Constitution amending Article
342A of the Constitution of India was introduced with the objective of
strengthening the federal structure of the country. This now enables the state
governments to have different OBC lists, which cannot be permitted to be
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superseded or replaced by the central OBC list. He therefore contends that the
Delhi OBC list has to be respected and ought to be applied to institutions
affiliated with the state university.
18. Reliance is also placed on a decision of this Court in "Ram Awtar
Manda& Ors v. Guru Gobind Singh Indraprastha University & Ors"., 2013
SCC OnLine Del 2368 wherein it was held that the medical colleges
affiliated to the respondent no.2/GGSIPU are not 'Central Educational
Institutions' within the meaning of the section 2(d) of the CEI Act, 2006.
Reliance is also placed on a decision of the Division Bench of the Bombay
High Court in "V. Anto v. Union of India and another 2009 SCC" OnLine
Bom 1268 wherein it was held that a medical college affiliated to the
Maharashtra University of Health Science could not be treated as central
educational institution within the meaning of section 2(d) of the CEI Act,
2006. He therefore, prays that the impugned notice be quashed and the
petitioners be permitted to participate as OBC category candidates at least in
the second round of counselling, which is still ongoing.
19. On the other hand, Mr. Kirtiman Singh, learned counsel for the
respondent no.1, opposes the writ petition by submitting at the outset that the
respondent no.1 is conducting counselling for approximately 27 central
institutes, wherein the central list of OBC (non-creamy layer) is followed.
Both VMMC and ABVIMS are central funded and aided institutes in central
government hospitals and therefore, in order to bring uniformity in the
counselling process, it was decided that the same criteria of adopting the
central OBC list as is being followed in other central institutes should be
adopted. He submits that central OBC list is already being used for
admissions in Under Graduate course since NEET-UG 2020 itself and,
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therefore, there is no reason the same should not be followed for the PG
admissions.
20. While responding to the first issue raised by the petitioners, he submits
that the petitioner's plea being that the rules of the game had been changed
by the respondents after the game had already begun, is based on a wholly
erroneous premise. Once the petitioners themselves are placing reliance on
the GGSIPU General Admissions Brochure published on 10.06.2021, clause
6.1.4 whereof clearly mentions that the OBC reservation policy was not
applicable in Master's and Post Graduate Diploma courses, they cannot now
claim that they should be granted any reservation on the basis of the Delhi
OBC list. In fact, as per the brochure issued by the respondent no.2, there was
no OBC reservation in the PG and, therefore, merely because in the last two
years, reservation to the candidates in the Delhi OBC list had been granted
cannot be a ground to overlook this specific provision in clause 6.1.4, which
categorically states that the OBC reservation policy will not be applicable to
PG courses. His contention, thus, is that once the OBC reservation policy is
itself not applicable to PG courses, the petitioners cannot be permitted to
selectively rely on the guidelines for OBC seats in GGSIPU quota or State
quota as envisaged under clause 7.2 of the brochure, wherein reference has
been made to Delhi OBC lists.
21. He, further, submits that the information bulletin issued by respondent
no.1 on 03.10.2021 in itself made it clear that both VMMC and ABVIMS are
central institutes and, therefore, the OBC seats in the said institute will be
filled as per the central government list. Merely because there was an
inadvertent error on the part of the respondent no.1 qua answer to Q. No.50 in
the FAQs, which has now been corrected cannot entitle the petitioners to now
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urge that they were under an impression that the OBC candidates in the Delhi
OBC list will also be entitled to reservation in these central institutes.
22. By drawing my attention to paragraph 7.2 of the General Admissions
Brochure issued by the respondent no.2/GGSIPU, he submits that the same
clearly mentions that out of the total seats available for admissions, 50% seats
would be reserved for the All India Quota, to be filled up on the basis of All
India Entrance Test conducted by an institution on behalf of the DGHS,
Government of India and the other 50% would be reserved for MBBS
graduates of GGSIPU. The same paragraph further clarifies that what was
earlier referred to as 'State Quota' would now be referred to as 'GGSIPU
Quota' and therefore it was apparent that the Delhi OBC list would no longer
be relevant as it was no longer a state quota but an institutional quota. He,
thus, contends, that the brochure was clear on the subject of OBC
reservations in the central institutes and a careful reading of the same leaves
no manner of doubt that the prospective candidates were privy to the change
in scheme over six months ago. The petitioners cannot not be allowed to
claim that the notice dated 12.01.2022 is the first time they have learnt of the
change in the PG OBC reservation policy by the respondent no.1. He, thus,
contends that the petitioners' plea that the rules of the game have been
changed at the last minute is wholly meritless and, therefore prays that the
decisions relied upon by the petitioners will not be applicable to the facts of
the case.
23. Mr. Singh, further places reliance on clause 6.6 of the Information
Bulletin and Counselling Scheme issued by the MCC in the first week of
October, 2021 to urge that the policy and scheme for admission was
mentioned in clear terms in the bulletin. Clause 6.6 thereof reads as under:
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"6.6 CENTRAL INSTITUTES- VMMC & SJH, ABVIMS & RML, ESIC,
BASAIDARAPUR
CENTRAL INSTITUTES
VMMC & SJH, ABVIMS & RML, ESIC,
BASAIDARAPUR
50% AIQ 50% internal
seats
50% Seats will be contributed by the Central Institutes (VMMC &
SJH, ABVIMS & RML, ESIC, Basaidarapur) to All India Quota.
For the remaining 50% seats, candidates who have completed their
MBBS/BDS from I.P. University (VMMC & SJH; ABVIMS & RML;
Dr. Baba Saheb Ambedkar Medical College & Hospital, New
Delhi; Army College of Medical Sciences, Delhi; North Delhi
Municipal Corporation (Medical College) Hindu Rao Hospital) are
eligible for Internal seats of 50% in Central Institutes (VMMC &
SJH, ABVIMS & RML, ESIC, Basaidarapur).
Reservation Policy:
The reservation policy of the Central Government is followed:
S.C. - 15 %
S.T. - 7.5 %
O.B.C.- (Non-Creamy Layer) as per the Central OBC list-
27%
EWS- as per Central Government norms- 10%
PwD- Horizontal Reservation as per NMC norms- 5%
Reservation of seats under PWD Category has been increased
from 3% to 5% in AIQ and the 21 Benchmark Disabilities as
envisaged under the regulations of Rights of Persons with
Disabilities Act 2016 and as per NMC norms. For range of
disabilities included, please see Annexure '1'.
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Candidates who want to avail 5% PwD reservation in PG seats
of Govt. /Central medical institutions should obtain Disability
certificate as per 21 Benchmark Disabilities given under RPWD
Act 2016, from the designated disability centres as per the list
enclosed as ANNEXURE 2. The certificate issued by any other
hospital/ board will not be accepted."
24. He further submits that the admissions on the basis of the Delhi OBC
list will necessarily amount to reservation on the basis of the domicile of the
candidates, which is not permissible in terms of the decision of the Apex
Court in Dr. Pradeep Jain v Union of India 1984 (3) SCC 654 followed by
the decision in Nikhil Himtahni v. State of Uttrakhand & Ors. even though
the issue as to whether resident/domicile based reservation is permissible has
been referred to a larger bench in Dr. Tanvi Behl v. Shrey Goel and Ors.
2020 13 SCC 675 the legal position, as on date, is that no such reservation is
permissible.
25. In response to the second issue raised by the petitioners, Mr. Singh by
drawing my attention to paragraph 6.6 of the Information Bulletin and
Counselling Scheme issued by the MCC, submits that right from 03.10.2021,
when the brochure was issued, all candidates were aware that the VMMC and
ABVIMS are central institutes, where the central OBC list will be applicable.
He submits that once these institutes are fully funded by the central
government, they would qualify as central educational institutes in terms of
Section 2(d)(iv) of the CEI Act, 2006. Without prejudice to his submission
that the two institutes are central education institutes, he submits, that even
otherwise once the institutes are completely governed and funded by the
central government, it is open for the central government to apply the central
OBC list to these institutes. The petitioners' plea that the central government
derives its power to provide for reservation and the manner in which it should
be provided only under the CEI Act, 2006 is wholly misplaced. By placing
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reliance on the observations of the Apex Court in paras 30 to 51 of Neil
Aurelio Nunes(supra), he submits that the central government has the power
to provide for reservation in terms of the Articles 14, 15 & 16 of the
Constitution of India.
26. He further contends that it is not as if the petitioners have become
ineligible on account of this clarification as they were already granted an
opportunity to change their category from OBC to unreserved, which
opportunity they have all availed successfully. He, therefore, prays that in the
light of his submissions, the present writ petition be dismissed.
27. In support of the stand taken by the respondent no.1/MCC, learned
counsel for respondent no.2, Ms. Anita Sahni, and Dr. Charu Mathur, learned
counsel for the interveners, jointly submit that they agree with the stand taken
by the respondent no. 1/MCC, insofar as it relates to the applicability of the
reservation policy, that there has been no last minute change in the
Admission and Counselling Bulletin as the same has been made in
accordance with the General Admissions Brochure issued by the respondent
no.2/GGSIPU. Dr. Mathur, who is representing the candidates from the
Central OBC list, further submits that the writ petition be dismissed in view
of the fact that the relief sought in the present petition is akin to demanding
preferential treatment towards the candidates from the Delhi OBC list.
28. Having considered the submissions of the parties and perused the
record, it would be appropriate to, at the outset, note the impugned notice
dated 10.01.2022, published on the MCC website on 12.01.2022, whereby
the respondents have clarified the NEET-PG Counselling Scheme 2021. The
same reads as under:-
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"Ref.U-12021/06/2021-MEC Dated: 10-01-2022
NOTICE
Urgent Attention Candidates/Institutions of NEET-PG:
The Counselling for NEET-PG is scheduled to commence from
12/01/2022. However, the following changes/modifications in the
counselling scheme will be implemented from the academic year 2021-
22:
S.N NEET-PG Counselling up NEET-PG Counselling 2021
to
o. onwards
1. 2 rounds of AIQ counselling 4 rounds of AIQ counselling
AIQ Round 1 AIQ Round 1
AIQ Round 2 AIQ Round 2
Seats reverted back to the AIQ Mop-up Round
respective States after AIQ Stray Vacancy Round
completion of round 2 of
AIQ. No seat will be reverted back to
the
respective States after completion
of
round 2 of AIQ.
2. Unfilled NRI/Muslim Unfilled NRI/Muslim
Minority/Jain Minority seats Minority/Jain Minority seats to
are reverted to the Deemed be converted to Indian National
Universities after completion seats after exhaustion of all the
of Mop-Up Round for eligible NRI/Muslim Minority/Jain
conduction of Stray Vacancy Minority Candidates during the
Round by Deemed Mop-Up Round before reverting it
Universities. back to the respective Deemed
University.
3. Reservation Policy of AIQ: Reservation Policy of AIQ for
S.C.- 15% Central Institutes/University as
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S.T.- 7.5% well as State contributed seats:
O.B.C.- (Non-Creamy S.C.- 15%
Layer) S.T.- 7.5%
as per the Central OBC list- O.B.C.- (Non-Creamy Layer)
27% (Only in Central as per the Central OBC list- 27%
Institutes/University) EWS- as per Central
EWS- as per Government norms- 10%
Central PwD- Horizontal Reservation
Government as per NMC norms- 5%
norms- 10% (Only
in Central
Institutes/University)
PwD- Horizontal
Reservation as per
NMC norms- 5%
29. As noted hereinabove, the first and foremost grievance of the
petitioners is that the respondents have, at the last minute, "changed the rules
of the game", thereby excluding them from being considered against the OBC
reservation even in the 'Institutional Preference Quota' seats. It has been
urged that the bulletin issued by the respondent no. 1 on 03.10.2021, clearly
provides in Clause No. 6.5.3 that eligibility for internal seats in Central
Institutes (VMMC & SJH, ABVIMS & RML, ESIC, Basaidarapur) would be
as per their admission brochure, which position remained unchanged when
the brochure was amended on 10.01.2022. It was only in the evening of
12.01.2022, that this position was sought to be changed alongwith the answer
to FAQ No.50. It has therefore, been contended that this last minute change
of the eligibility criteria for availing the OBC reservation was impermissible,
for which reliance has been placed on Ankita Chaudhary (supra).
30. The petitioners have also vehemently urged that once in terms of the
clause 6.5.3 of the Bulletin issued by respondent no.1 on 03.10.2021,
eligibility conditions were to be determined as per the admission brochure of
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the institute, they were all along made to believe that as per past practice,
OBC reservation against institutional seats in VMMC & SJH, ABVIMS &
RML, ESIC, Basaidarapur would be as per the Delhi OBC list and not as per
the Central OBC list, which was applicable only to AIQ seats. In order to
appreciate this plea, it would be necessary to refer to Clause 6.1.4 of the said
brochure which besides clarifying that the reservation in the OBC category
was not applicable at the Masters and Post Graduate level, also provided that
for central government institutions, OBC reservation would be as per the
Central OBC List. The said Clause reads as under:-
"6.1.4 Other Backward Castes
27% seats are reserved for Delhi OBC Category belonging
to the list of OBC castes in Delhi. The reservation will be
available only in the University Schools of Studies and
other Government Institutions. Students will be admitted in
this category on the submission of a certificate to this effect
from the Competent Authority of the Government of NCT of
Delhi. Certificate issued by Govt. of India or any state
government will not be accepted under any circumstances.
The reservation for OBC Category is only for candidates
who are from Delhi Region. A certificate issued by a
Competent Authority of Delhi to an individual on the basis
of Caste Certificate of his/her parents from another state
will be accepted for claiming a seat under OBC Category if
and only if the caste is in the list of notified OBC list by
Govt. of NCT of Delhi. Reservation in OBC Category is not
applicable for Master's Level and Postgraduate Diploma
programmes. The non-creamy layer certificate should be
issued after 31st March, 2021. It is mandatory to submit
the Non-Creamy Layer Certificate issued after 31st March
2021 for claiming Reservation against OBC Category.
However for Central Government Institutions, seat
allocation is on all India basis among the category of seats
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including OBC and for such reservation the certificate
issued should be as per the central list of OBC and the
non-creamy layer certificate should be issued after 31 st
March, 2021."
(emphasis supplied)
Reference may also be made to Clause 7.2 which provided that
counselling to both AIQ and State quota would be by respondent no. 1
MCC. The said Clause reads as under:-
"7.2 PGMC (CET Code 102)
1. The candidates must qualify NEET - PG for admissions to
the Academic Session.
2. Out of total seats that shall be available for admissions,
50% seats are reserved for All India Quota,
to be filled up on the basis of All India Entrance Test
conducted by an institution on behalf of DGHS, Government
of India.
3. The other 50% seats will be reserved for MBBS graduates
of Guru Gobind Singh Indraprastha University. Reservation
will be applicable in these seats as per policy of University as
applicable from time to time for Scheduled Caste (SC),
Scheduled Tribe (ST) and OBC candidates. For reservation
to Physically Challenged (PWD) candidates, guidelines of
Medical Council of India will be applicable. Earlier 50%
quota was called 'State Quota', Since these 50% seats are
exclusively for MBBS graduates of GGSIP University, hence
these 50% seats will be termed as 'GGSIP University Quota'
(State Quota).
4. Any change in reservation policy, if taken by the
Government of India/NCT of Delhi or the
University, the counselling will be conducted in accordance
to that.
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5. Counselling for all the seats of State Quota & All India
Quota shall be conducted by Medical counseling Committee,
DGHS, Govt. of India, Delhi"
31. A perusal of the aforesaid Clause 6.1.4 from the Information Bulletin
issued by respondent no. 2, shows that while it provided for 27% reservation
for OBC candidates from the Delhi OBC list, it was made clear the same
would be applicable only in University Schools of Studies & other
Government Institutes. However, it is important to note that the class of
Central Government Institutes was, placed in a different category; by
specifically providing that for availing the OBC reservation in these
institutes, the candidates should possess a certificate as per the Central OBC
list. The bulletin issued by respondent no. 1 also categorically described
VMMC & SJH, ABVIMS & RML, ESIC, Basaidarapur as Central Institutes
which position, the petitioners never challenged. In this regard, reference
may be made to FAQ no. 54, wherein this position was clarified, the same
reads as under:
"Q. No. 54: What will be the eligibility criteria for 50%
Institutional seats of Central Universities which is being
conducted by DGHS?
Ans: The eligibility conditions of the 50% Institutional Quota of
the Central Universities will be as per the following eligibility
criteria given by the respective institutions. For additional
information please contact the concerned University.
AMU An Institutional (Internal) candidate is one who
has passed the qualifying examination
(MBBS/BDS as applicable) from This
University and completes his/her internship
between April 01, 2018 and March 31, 2021
(both days inclusive).
BHU Only those Candidates who have passed BDS
from Institute of Medical Sciences, BHU in
December, 2019 (Supplementary Batch by
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31/03/2020) and have completed Compulsory
rotary internship before 31/03/2021 will be
considered for admission to MDS Course-2021
in IMS, BHU under Internal (Institutional)
quota pool, provided the Candidates have
appeared and qualified in NEET-PG 2021
Examination.
Candidate who are already pursuing MDS
course in IMS, BHU through Internal
(Institutional) quota or passed BDS from
Institute of Medical Sciences, BHU in earlier
academic years (i.e. before 2019) are not
eligible for admission to PG Course 2021 under
BHU Internal (Institutional) quota.
DU a) For Delhi University Quota:
The candidate must have passed final M.B.B.S
examination (for MD/MS/Diploma Course) and
BDS examination (for MDS Course) from the
University of Delhi and must have completed
satisfactorily one-year compulsory rotating
internship as on or before March, 31 of the
Year of admission and must have submit their
internship completion certificate at the time
of admission.
b) For All India Quota:
The candidate must have passed final M.B.B.S
examination (for MD/MS/Diploma Course) and
BDS examination (for MDS Course) from the
recognized Institution/University and must have
completed satisfactorily one- year compulsory
rotating internship as on or before March, 31
of the Year of admission and must submit their
internship completion certificate at the time of
admission.
Central The eligibility for Central Institutes will be as
Institutes per their admission brochure. For more
(VMMC & information please refer to their website.
SJH,
ABVIMS &
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RML,
ESIC,
Basaidarapur)
Similarly, the brochure issued by the respondent no. 1 on 03.10.2021 also
clearly described VMMC & SJH, ABVIMS & RML, ESIC, Basaidarapur as
Central Institutes. This Brochure was also never assailed by the petitioners.
32. By drawing my attention to Section 2(d) of the CEI Act, 2006, Mr.
Venugopal has vehemently urged that the VMMC & SJH, ABVIMS & RML,
ESIC, Basaidarapur could, by no stretch of imagination, qualify as a Central
Educational Institution, as despite receiving aid from the Central
Government, it continued to be affiliated to a state university and therefore,
did not fulfil the conditions envisaged under Clause (iv) of Section 2(d) of the
CEI Act. By placing reliance on V. Anto (supra) and Ram Awtar Manda
(Supra) it has been urged that unless both the conditions of receiving aid and
affiliation with a central university are fulfilled, the institute cannot be treated
as Central Educational Institution. In order to appreciate this plea, Section
2(d) of the CEI Act, 2006 may be noted and the same reads as under:
"2(d) "Central Educational Institution" means--
(i) a university established or incorporated by or under a
Central Act;
(ii) an institution of national importance set up by an Act
of Parliament;
(iii) an institution, declared as a deemed University under
section 3 of the University Grants Commission Act, 1956
(3 of 1956) and maintained by or receiving aid from the
Central Government;
(iv) an institution maintained by or receiving aid from the
Central Government, whether directly or indirectly, and
affiliated to an institution referred to in clause (i) or
clause (ii), or a constituent unit of an institution referred
to in clause (iii);
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(v) an educational institution set up by the Central
Government under the Societies Registration Act, 1860
(21 of 1860)".
33. In my view, once it is an admitted position that VMMC & SJH,
ABVIMS & RML, ESIC, Basaidarapur continue to be affiliated to respondent
no. 2, a state university, the petitioners are justified in contending that the
same cannot be said to be Central Educational Institutions (hereinafter
referred to as 'CEI') under the CEI Act, 2006. The issue, however, is whether
merely because VMMC & SJH, ABVIMS & RML, ESIC, Basaidarapur do not
qualify as CEI under the CEI Act, which makes it mandatory for the Central
Government to provide 27% reservation for OBC candidates, can it denude
the Central Government of its power to decide OBC list to use, the Central or
the State list? For an answer to this question it would be necessary to
examine the objective of the CEI Act, which was conceptualized to ensure
provision of a certain percentage of reservation in CEIs. The same reads as
under:
"An Act to provide for the reservation in admission of the
students belonging to the Scheduled Castes, the
Scheduled Tribes and Other Backwards Classes of
citizens in certain Central Educational Institutions
established, maintained or aided by the Central
Government, and for matters connected therewith or
incidental thereto."
Upon a perusal of the aforesaid, it is evident that the CEI Act merely provides
for a mandatory reservation in the central educational institutes and does not
in any manner envisage interference with the constitutional power of the
Central Government to make reservations for admissions to any institute. The
answer therefore, to the question hereinabove has to be a clear 'NO'. Merely
because institutes such as VMMC and ABVIMS do not fall under the ambit
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of the term 'central educational institutions' as defined in 2 (d) cannot imply
that the central government does not have the power to provide for
reservations in these institutes. Similarly, it cannot be said that the central
government does not have the power to prescribe that only the central OBC
list would be applicable in these institutes. In this regard, reference may be
made to the observations of the Apex Court in Paragraph 41 of its decision in
Neil Aurelio Nunes and others (supra), wherein the Court dealt with the
constitutional power of the State to make reservations in educational
institutions. The same reads as under:-
"41. The Constitution enables the State to make special
provisions for the advancement of socially and
educationally backward classes for admission to
educational institutions at both the UG and PG levels.
While on certain occasions, this Court has remarked that
there cannot be any reservation in SS courses, this Court
has never held that reservations in medical PG courses
are impermissible. In Pradeep Jain (supra), this Court
did not hold that reservation in PG courses is altogether
impermissible. In Dr. Preeti Srivastava (supra), this
Court was not concerned with the issue of reservation in
PG courses; rather it was concerned with the question
whether it is permissible to prescribe a lower minimum
percentage of qualifying marks for reserved category
candidates in comparison to the general category
candidates. In AIIMS Student Union v. AIIMS, this Court
was concerned with the question of reservation based on
institutional preference in PG courses and held that
limited preference to students of the same institution can
be given at the PG level. In Saurabh Chaudhri v. Union
of India, a Constitution Bench of this Court observed that
reservation in PG courses to a reasonable extent did not
violate the equality clause. Mr. Divan had urged on
behalf of the petitioners that for many individuals PG is
the end of the road and therefore, the PG courses should
be equated with SS courses and no reservation should be
allowed in PG. We find it difficult to accept this argument
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when this Court has time and again permitted reservation
in PG courses. This argument merely seeks to create an
artificial distinction between the courses offered at the
PG level. Further, only certain medical fields do not have
SS courses and on the basis of that we cannot deem that
reservation is impermissible in PG as a whole. Crucially,
the issue here is whether after graduation, an individual
is entitled to reservation on the ground that they belong
to a class that suffers from social and educational
backwardness. In our opinion, it cannot be said that the
impact of backwardness simply disappears because a
candidate has a graduate qualification. Indeed, a
graduate qualification may provide certain social and
economic mobility, but that by itself does not create
parity between forward classes and backward classes. In
any event, there cannot be an assertion of over-inclusion
where undeserving candidates are said to be benefitting
from reservation because OBC candidates who fall in the
creamy layer are excluded from taking the benefit of
reservation. Thus, we find that there is no prohibition in
introducing reservation for socially and educationally
backward classes (or the OBCs) in PG courses".
34. In the present case, both the institutions in question, have all along
been described as Central Institutes both by the respondent no. 1 and
respondent no. 2, this was made clear as early as on 10.06.2021 when the
respondent no. 2 issued its Information Bulletin, and was reiterated in the
Information Brochure issued by respondent no.1 on 03.10.2021. It is also
undisputed that these institutes are funded and maintained by the Central
Government. In my view, this position that in all Central Institutions,
admissions against seats reserved for the OBC was meant to be only for those
in the Central OBC list was, therefore, crystal clear to everyone right from
the beginning. Moreover, all the candidates were also well aware that in all
central institutes including the VMMC & SJH, ABVIMS & RML, ESIC,
BASAIDARAPUR, it was only the central OBC list which was being followed
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for Under Graduate courses from NEET-PG 2020 itself. At the same time, it
cannot be denied that FAQ no. 50 as initially notified on 03.10.2021, and
thereafter, on 10.01.2022 sought to convey otherwise. Undoubtedly, the
impression sought to be given was that the admission against OBC seats in
the institutional preference seats would be as per the Delhi OBC list; this was
however, changed on 12.01.2022. While the respondent no. 1 claims it was a
mistake which was corrected, the petitioners contend otherwise. The changes
in FAQ no. 50 are mentioned hereinbelow:
NEET-PG Information NEET-PG Information
Bulletin & Counselling Bulletin & Counselling
Scheme on Respondent Scheme on Respondent No.1's
No.1's website before website on 13.1.2022
13.1.2022
Q. No. 50: What is the Q. No. 50: What is the criteria
criteria for OBC reservation for OBC reservation in Central
in Central Institutes of IP Institutes of IP University?
University?
Ans: The rules of Central
Ans: There will be provision Institutes/University and the
for OBC candidates of state OBC list as per Central Rules
quota of IP University to will apply.
exercise their right of OBC
reservation in IP University
seats while they will be
treated as UR (General
Category) in All India Quota.
35. Though, the petitioners are justified in urging that they were misled by
answer to FAQ no. 50, which was changed only on 12.01.2022 to exclude
them, the fact remains that all other clauses, of both the brochure of
respondent no. 1, and the Information Bulletin of respondent no. 2 clearly
indicated that in these two institutes, described as Central Institutes, it was
the Central OBC List which would be applicable, both for the AIQ and
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Institutional seats. The brochure and bulletin have to be read as a whole and
compositely; merely because there was an error in the answer to one of the
many FAQs, which error too was amended before the petitioners were to
undertake their choice filling, cannot unfortunately, come to their aid.
36. In fact since, the respondent no.1 has also not seriously disputed the
position that some last minute changes were introduced in its brochure, and
therefore the petitioners are justified in urging that the position that
candidates in Delhi OBC list will not be eligible even for the institutional
quota seats of respondent no. 2 became clear only on 12.01.2022. This
clarification was, however, issued before the petitioners were asked to
exercise their choices on 13.01.2022 and not after counselling had
commenced, as was sought to be urged by Mr. Venugopal.
37. Thus, despite some clarifications having been issued by the respondent
no. 1 at the last minute, I am of the considered view, that upon a holistic
reading of the Bulletin issued by respondent no.1 and the Brochure issued by
respondent no.2, it is apparent that the respondents' intention to rely only on
the Central OBC list for reservation even for institutional preference seats,
was made abundantly clear from day one itself. It can therefore, not be said
that there was any change in the 'rules of the game' after it had begun. At
best, it was a case where a clarification was issued belatedly, yet the same
was also issued before the counselling was to begin on 13.01.2022. This,
when viewed together with the fact that all the candidates including the
petitioners, were given an option to change to the Un-Reserved Category,
which option they admittedly exercised, leads to only one conclusion, that
neither were the petitioners taken by surprise nor has any prejudice been
caused to them on account of the impugned notification. Moreover, the
petitioners' alternative prayer that they be given an opportunity to apply in
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the Un-Reserved category has already been granted and about 1,200 similarly
situated candidates have exercised this option; in fact, a number of
petitioners' have been allotted seats in the Un-Reserved category and
therefore, on this count also the petition is liable to be rejected.
38. In my considered opinion, the decision of this Court in Ankita
Choudhary (supra) upon which the petitioners have placed heavy reliance to
contend that the 'rules of the game' cannot be changed after the select list is
published is, not applicable to the facts of the present case; in that case, a
policy change to exclude central categories was brought in at the last minute.
In the present case, there is no last minute change but only a last minute
clarification of an inadvertent error. The petitioners have also not denied that
this policy to use only the Central OBC list for admission to the Under
Graduate courses in these two institutes has been in vogue since the last
academic year. This decision is therefore clearly distinguishable and does not
forward the case of the petitioners.
39. For the reasons stated hereinabove, I do not deem it necessary to deal
with the submissions of the respondent that granting the relief sought in the
present petition would result indirectly in reservations based on the domicile
of candidates, which, it has been contended is not permissible in view of the
various decisions of the Apex Court.
40. For the reasons stated above, the writ petition is dismissed with no
orders as to costs.
(REKHA PALLI)
JUDGE
FEBURARY 15, 2022
sr/acm
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