Gauhati High Court
Dr. Mohibul Islam And Anr vs Dr. Masumi Ahmed And 17 Ors on 10 March, 2022
GAHC010005052022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND
ARUNACHAL PRADESH)
Case No. : I.A. (Civil) No.413 of 2022
In WP(C)/211/2022
1. DR. MOHIBUL ISLAM AND ANR.
S/O - AHMED ALI
R/O - VILLAGE - MAHERIPAR P.O. -
KALIADINGA VIA - JURIA DISTRICT -
NAGAON ASSAM PIN - 782124
2: . DR. ZULFIQUAR AHMED
S/O - ABDUL KADER
R/O - VILLAGE - COLLEGE NAGAR P.O. -
MANKACHAR PIN - 783131 DISTRICT -
DHUBRI ASSAM
VERSUS
1. DR. MASUMI AHMED AND 17 ORS.
D/ O - LATE DERAZUDDIN AHMED
R/ O - KALAFAKIRTOLA WARD NO. 4
NALBARI TOWN P.O. -MILANPUR DISTRICT -
NALBARI PIN - 781337 ASSAM
2:DR. DENIAL NOWAJ MAJUMDER
S/ O - SHAHNOWAJ MAJUMDAR
R/ O - HOUSE NO. 15 2ND IDGAH LANE
SARUMATARIA DISPUR P.O. - ASSAM
SACHIVALAYA GUWAHATI - 781006 ASSAM
3:. DR. SUMMY SINHA
D/ O - SUNIL SINHA
R/ O - HOUSE NO. 4 AYODHYA PATH
JANAKPUR ROAD KAHILIPARA P.O. -
KAHILIPARA GUWAHATI - 781019 ASSAM
4:DR. SOMNATH SAHA ROY
S/ O - SANKAR SAHA ROY
R/ O - HOUSE NO. 224C WARD NO. 6 LOAN
OFFICE LANE P.O. - DHUBRI PIN - 783301
ASSAM
Page 1 of 13
5:DR. LIPIKA SARMA
D/ O - DR. LABANYA KUMAR SARMA
R/ O - M.C. ROAD CHENIKUTHI P.O. -
SILPUKHURI GUWAHATI - 781003 ASSAM
6:DR. JIA UR RAHMAN
S/ O - KADAM ALI KHAN
R/ O - ALAMGANJ PART 8 P.O. - RANGAMATI
PIN - 783339 DHUBRI ASSAM
7:DR. BANASHREE BAISHYA
D/ O - GANESH BAISHYA
R/ O - HOUSE NO. 30 NAGARIK PATH
CHANDAN NAGAR P.O. - BELTOLA
GUWAHATI - 781028 ASSAM
8:DR. ANUPJYOTI SARMA
S/ O - AMIYA KUMAR SARMA
R/ O - HOUSE NO. 141 SAMANNAY PATH
JAPORIGOG P.O. - DISPUR GUWAHATI -
781005 ASSAM
9:DR. BINAYAK GUPTA
S/ O - BASAB GUPTA
R/ O - FLAT NO. B3 SIKHAR APARTMENT N.N.
DUTTA ROAD SILCHAR P.O. - SILCHAR PIN -
788001 ASSAM
10:. DR. BHARGAV BORDOLOI
S/ O - RINA BORDOLOI
R/ O - MILANPUR FISHERY OFFICE ROAD
BYE LANE NO. 2 P.O. - MILANPUR NAGAON
PIN - 782001 ASSAM
11:DR. DARSHAN DUTTA BARUAH
S/ O - SUBHASH CH. DUTTA BARUAH
R/ O - FATASIL DATALPARA P.O. - FATASIL
AMBARI GUWAHATI PIN - 781025 ASSAM
12:DR. SATABDI DUTTA BARMAN
S/ O - LATE PRADIP BARMAN
R/ O - SEWALI PATH HATIGAON P.O. -
HATIGAON CHARIALI GUWAHATI - PIN -
781038 ASSAM
13:DR. SMITA SARMA
D/ O - HARAGOBINDA SARMA
R/ O - HOUSE NO. 25 GAURAV ROSE
BAYAPARTMENT MADHUBAN NAMGHAR
PATH BAMUNIMAIDAM GUWAHATI PIN -
781021 ASSAM
Page 2 of 13
14:. DR. RUBY BARMAN
D/ O - DIGANTA BARMAN
R/ O - HOUSE NO. 93 SUSHILA PATH
UDAYNAGAR KHANAPARA P.O. -
KHANAPARA GUWAHATI - 781022 ASSAM
15:DR. YOGRAJ SARMA
S/ O - NABARAJ SARMA
R/ O - HOUSE NO. 93 AMERIGOG
P.O. - BASISTHA PIN - 781023 ASSAM
16:DR. SUBHAM KASHYAP
S/O - PROBHAT SARMAH
R/O - BORBIL NO. 1 NEAR LITTLE STAR
SCHOOL DIGBOI P.O. - TINSUKIA PIN - 786171
ASSAM
17:THE STATE OF ASSAM REPRESENTED BY
ITS PRINCIPAL SECRETARY HEALTH AND
FAMILY WELFARE DEPARTMENT
GOVERNMENT OF ASSAM DISPUR
GUWAHATI - 781006 ASSAM
18:THE DIRECTOR OF MEDICAL EDUCATION
ASSAM SIXMILE KHANAPARA GUWAHATI -
781022 ASSAM
Advocate for : MS. M MEDHI
Advocate for : MR. U K NAIR, for DR. MASUMI AHMED AND 17 ORS.
-B E F O R E-
HON'BLE THE CHIEF JUSTICE MR. SUDHANSHU DHULIA
HON'BLE MR. JUSTICE SOUMITRA SAIKIA
Order
10.03.2022
(Sudhanshu Dhulia, CJ)
Heard Mr. K.N. Choudhury, learned senior counsel
for the applicants. Also heard Mr. D. Saikia, learned Advocate
General, Assam as well as Mr. U.K. Nair, learned senior
counsel for the private respondents/writ petitioners.
In W.P.(C) No. 211/2022 (Dr. Masumi Ahmed & 15
Ors. -vs- The State of Assam & Ors.), we had passed an
interim order on 19.01.2022. The aforesaid case and the
Page 3 of 13
other connected cases before us today relate to the
applicants [in I.A. (Civil) No. 413/2022] as well as the
petitioners who are all MBBS doctors and are presently
competing for the State Quota P.G. Seats in the on-going
counselling. What was challenged before us in W.P.(C) No.
211/2022 was inter alia Rule 5 of the Medical Colleges of
Assam (Regulation of Admission into Post Graduate Degree
and Diploma Courses) Rules, 2021 (hereinafter referred to as
'the 2021 Rules'), where State Quota seats were restricted to
the permanent residents of Assam, amongst various other
provisions. The primary question before us was whether in
the on-going counselling the 2021 Rules would be applicable
or will it be the Assam Medical Colleges (Regulation of
Admission to Post-Graduate Courses) Rules, 2006
(hereinafter referred to as 'the 2006 Rules') which would be
applicable. Whereas under the 2006 Rules one of the
conditions for a candidate to be eligible for consideration
under the State Quota Seats is that he/she should "have
MBBS degree from Medical College of Assam/ University of
the State of Assam recognized by the Medical Council of
India", under the 2021 Rules this condition has been changed
and it now reads "The candidate must possess MBBS degree
from the state of Assam/any Medical College outside the
state of Assam recognized by the MCI or NMC/any equivalent
Degree from abroad and have cleared the Screening test
conducted by organization authorized by the Government of
India.". In other words, even those candidates who have
done MBBS from outside the State of Assam but are
permanent residents of Assam, are eligible to be considered
Page 4 of 13
for admission to P.G. Seats under the State Health Quota. In
addition, there is another change in the number of seats for
the State Health Quota. Under the 2006 Rules these seats
were limited to 23, which have now been increased to 40.
By our interim order dated 19.01.2022, we had held
that it would be the 2006 Rules that would be applicable
since the 2021 Rules had been enforced on 10.12.2021,
admittedly after the examinations (which were held on
11.09.2021), and after the results were declared (i.e., on
28.09.2021). Thus, it was clear that the 2021 Rules had
come up after the results of NEET-2021 had been declared
and therefore, in our opinion, these Rules will not be
applicable in the on-going counselling.
Meanwhile, an interim application has been filed by
two of the respondents who would argue that subsequent to
the interim order dated 19.01.2022, a decision of the Apex
Court has come in the case of Neil Aurelio Nunes & Ors. -vs-
Union of India & Ors., reported in 2022 SCC OnLine SC 75.
In this landmark judgment, what was challenged before the
Apex Court was the reservation given to Other Backward
Classes (OBC) and Economically Weaker Section (EWS) in
medical colleges. While dealing with the reservation issue,
the false binary created between merit and reservation were
also explained as well as the concept of meritocracy and
ultimately these reservations were held to be valid under the
Constitution. All the same, while dealing with this core issue,
another aspect had also been decided by the Apex Court,
which was on the facts of the case which were before the
Apex Court. It was decided that the act of the Government
Page 5 of 13
by which reservations were made did not amount to altering
the rules of the game after the game had started. Mr. K.N.
Choudhury, learned senior counsel for the applicants would
very heavily rely on the findings of the Apex Court on this
aspect.
It has been submitted before us by Mr. K.N.
Choudhury, learned senior counsel for the applicants, that in
the aforesaid judgment under similar circumstances it has
been held that although the impugned notice providing
reservation for OBC and EWS category in the All-India Quota
seats was issued after the registration for the NEET-2021 had
closed yet that would not amount to changing the rules of
the game after the game has started, inasmuch as, the
candidates who had appeared in the NEET examination
would know nothing about the seat matrix at the time of
registration as the seat matrix is only disclosed to them
through a handbook during the counselling process and,
therefore, in Paragraph No. 58 of the judgment it has been
held as under:
"58. The impugned notice providing reservation for the
OBC and EWS categories in the AIQ seats was issued
after the registration had closed but before the exam
was conducted. Thus, it would not amount to altering the
rules of the game for the following reasons:
(i) The judgments cited by the counsel for the
petitioner on 'changing the rules of the game
midway' referred to changes in the selection
criteria or the procedure for selection. Those
cases are distinguishable from the case
before us since the impugned notice did not
alter the selection criteria;
(ii) The judgments referred to applied the
principle of not changing the rules of the
Page 6 of 13
game mid-way after the selection process (of
exams and interviews) was completed; and
(iii) Clause 11 of the information bulletin
specifies that the reservation applicable
would be notified by the counselling
authority before the beginning of the
counselling process, unlike the facts in Dr
Prerit Sharma (supra). The candidates
while applying for NEET-PG are not provided
any information on the distribution of the
seat matrix. Such information is provided by
the counselling authority only before the
counselling session is to begin."
On the strength of the said finding of the Supreme
Court, the learned senior counsel for the applicants would
argue that the interim order dated 19.01.2022 needs to be
vacated or suitably modified as there has been no change
in the rules of the game after the game has started as in
the present case as well, since the candidates knew
nothing about the seat matrix earlier and this they knew
only at the time of counselling. Mr. Choudhury would then
rely upon the proviso to Rule 3 of the 2006 Rules. The
Rule reads as under :
"3. COURSES AND SEATS--
(1) NUMBER OF SEATS :- On the date of
commencement of these rules, the number of
total seats in the Post-Graduate Courses in
different disciplines and their break up are
shown in Appendix-I.
Provided that the number of such
seats shall be determined by the Government
from time to time with the approval of the
Medical Council of India. The total number of
such seats shall be notified before counselling
for admission into the Post Graduate
Courses.".
Page 7 of 13
Mr. U.K. Nair, learned senior counsel appearing for
the writ petitioners, on the other hand, would argue that
the findings of the Apex Court on change in the rules of
the game would not be applicable to the facts of the
present case. The first reason assigned by the learned
counsel is that the Supreme Court in the aforesaid case
was dealing with reservation of seats under the All-India
Quota (AIQ), whereas presently we are only concerned
with the State Quota seats. Secondly, he would also argue
that unlike for the All-India Quota seats where seat matrix
would be known to the candidates only at the time of
counselling, such is not the case for the State Quota seats.
In the present case, reservation was known all throughout
from 2006 onwards and even subsequently after the
amendments made in the year 2010 and 2012. For
example, reservation or OBC remained constant at 15%.
Moreover, Rule 4(4)(i) the 2006 Rules shows that allotment
of the seats has to be done as per Appendix-I. This
appendix has been placed before this Court, which gives a
clear break-up of the seats which are available for
candidates in the three medical colleges, namely, Assam
Medical College, Guwahati Medical College and Silchar
*
Medical College. It is further broken to All-India Quota
and State Health Quota and then reservation for P.G.
courses. For example, for medicine, surgery and
orthopaedics, the following is the break up:
*At the relevant time, these were only medical colleges offering P.G.
Courses in Assam. Now there are six medical colleges, and all are
Government Medical Colleges. There are no private medical colleges
presently in Assam.
SUBJECT TOTAL 50% FOR S.C. S.T.(P) S.T.(H) OBC/M STATE GENERAL/ POOL
SEATS ALL INDIA STATE (7%) (10%) (5%) O BC HEALTH TQ/NEC SEATS
QUOTA QUOTA (15%) QUOTA QUOTA
1 2 3 4 5 6 7 8 9 10 11
(1)MEDICINE AMC-12 AMC-6 AMC-6 GMC-1 GMC-1 AMC-1 AMC-1 AMC-1 AMC-3
GMC-17 GMC-8 GMC-9 SMC-1 GMC-1 GMC-6
SMC-4 SMC-2 SMC-2 SMC-1
(2) SURGERY AMC-14 AMC-7 AMC-7 GMC-1 AMC-1 AMC-1 GMC-1 GMC-1 AMC-5
GMC-15 GMC-8 GMC-7 GMC-1 SMC-1 GMC-3
SMC-5 SMC-2 SMC-3 SMC-2
(3) AMC-3 AMC-1 AMC-2 SMC-1 GMC-1 AMC-1
ORTHOPAEDI GMC-2 GMC-1 GMC-1 AMC-1
CS SMC-2 SMC-1 SMC-1
In other words, the candidates who appeared for
the counselling after declaration of results in September,
2021 were already aware of the seat matrix as far the seat
matrix for the seats under the State Health Quota is
concerned. Moreover, the date of the examinations and
declaration of its results is a relevant consideration if we
examine the NEET-PG 2021 Examination Information
Bulletin. Para 10.7 of the aforesaid Bulletin relates to
publication of the merit list. The succeeding paragraphs,
i.e. Paragraphs- 10.7.1, 10.7.2 and 10.7.3 refer to three
lists which have to be prepared. The first is the overall
merit position of the candidates amongst all the candidates
who have appeared in the NEET-PG 2021; the second is
All-India 50% quota rank and the third is All-India 50%
quota Category Rank which would include the prescribed
reservation. Paragraph-10.9 refers to the result for State
Quota seats. Paragraphs-10.9.1 and 10.9.2 being relevant,
are reproduced hereunder:
"10.9 RESULT FOR STATE QUOTA SEATS
10.9.1. State quota seats in all Medical Institutions in a
State and seats in institutions established by the State
Govt., Universities established by an Act of State/Union
Territory Legislature, Municipal Bodies, Trust, Society,
Company or Minority Institutions shall be filled by
utilizing the merit list of NEET-PG. No State government/
private medical college/universities shall be conducting
any entrance exam at their own level.
10.9.2. NBE shall be providing only the data of
candidates and their marks in NEET-PG 2021 to the
designated counseling authority without applying
eligibility criteria, reservation criteria etc. of the concerned
states. State quota rank, state category rank, benefit for
in-service candidates, rural posting (if applicable) etc.
shall be determined/generated by the designated
agency/authority of the concerned States/UTs/
concerned authority as per applicable Regulations,
eligibility criteria, guidelines and applicable reservation
policies."
Whereas Paragraph-10.9.1 shows that the State
will grant admission under the State Quota only from the
merit list of NEET-PG- 2021, Paragraph-10.9.2 shows that
the National Board of Examination shall only provide the
data of candidates and their marks in NEET-PG-2021 to the
designated counselling authority and then it is upto the
State Government to give admission to the candidates as
per the applicable regulations, eligibility criteria, guidelines
and applicable reservation policies. This would inter alia
mean reservation policies applicable on the date when the
results are announced and when the list is received by the
State Government. In the present case, this definitely is a
date which precedes 10.12.2021 when the 2021 Rules
were enforced.
The proviso to Rule 3 would also not help the
applicants as it is an admitted fact that seats have to be
determined by the State in consultation with the MCI, but
these seats must be known before the counselling.
We have also gone through the submissions which
were raised before the Apex Court by the petitioners as
well as the reply given by the Union of India and we find
that the issue there was reservation of OBC and EWS
under All-India Quota where one of the grounds raised by
the petitioners was that even if reservation for the OBC
category in the AIQ seats is constitutionally valid, it ought
not to have been introduced for the academic year 2021-
22 since the notice on reservation for the OBC category
was introduced after the registration window was closed. It
was urged that the candidates had registered for the exam
against a certain seat matrix, having knowledge of the total
number of seats for which they could compete. The
impugned notification alters the seat matrix, changing the
rules of the game after the game had begun.
The reply given by the Union of India was that the
rules of the game were not changed after the process had
started since the reservation through the impugned notice
issued on 29 July 2021 was introduced much prior to the
date on which the exams were conducted and before the
commencement of the counselling process.
After relying upon a catena of judgments such as
Dr. Pradeep Jain -vs- Union of India, reported in (1984) 3
SCC 654, the Hon'ble Apex Court ultimately in Paragraph-
58 of the judgment in Neil Aurelio Nunes & Ors. -vs-
Union of India & Ors., gave its reasons, which we have
already referred above.
It is, therefore, clear that the Hon'ble Apex Court
in the said judgment has considered the date of
examination and the date of declaration of results as
important considerations to determine whether the rules of
the game have been changed after the game has started.
The rules of the game would not change if the changes are
brought prior to the examination. But it would be a change
in the rules of the game if the change is brought after the
examination, which is the case before us.
In view of the above, we are of the considered
view that although there are other aspects in the matter
such as whether institutional reservation is the only
reservation that can be made, or how much of reservation
for permanent residents of Assam can be made, etc. which
will be examined later, but definitely in this case what will
be applicable will be the 2006 Rules and the amendments
which have been brought in the said Rules in the
subsequent years, but not the 2021 Rules as these Rules
have come into force after the NEET Examinations were
held and results of such examination were declared.
Therefore, this would definitely amount to change in the
rules of the game after the game started and for this
reason, we do not find any ground either to vacate or
modify our interim order dated 19.01.2022.
At this stage, we may also add that our interim
order dated 19.01.2022 was based on a very fair
submission made by Mr. D. Saikia, learned Advocate
General, who pointed out to us the judgment of this Court
in WP(C) No. 4482/2017 (Ms. Poree Choudhury -vs- State
of Assam & Ors.), where in similar facts and circumstances,
it has been held that this would amount to change of the
rules of the game.
The interlocutory application stands dismissed.
JUDGE CHIEF JUSTICE
Comparing Assistant
