(PER: HON'BLE MR. JUSTICE B.M. SHYAM PRASAD)
short, 'the Rules']. The petitioners seek directions to
[a] that the Regular Post Graduation [the
Regular PG] seats earmarked under
the Rules for In-service candidates are
maintained until the completion of the
counselling, and
[b] that these seats, which are not allotted
in the initial round/s of counselling,
are filled up from amongst the In-
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service candidates once the prescribed
eligibility marks [the percentile] in the
entrance test is revisited by the
Ministry of Health and Family Welfare,
Union of India [for short 'MoHFW'].
The petitioners assert a cause that is repeated in
multiple petitions with this Court each year.
2. The KEA has begun the second-round
counselling for In-service candidates on 18.12.2025
[which is during the petition] and such counselling is
completed on 23.12.2025. The Department of Medical
Education [the DME] has immediately thereafter
decategorized those seats that were not allotted to the
In-service candidates for non-In-service candidates.
The second-round counselling for the non-In-service
candidates [including for these decategorized seats] is
completed on 24.12.2025. The MoHFW has reduced
the percentile on 13.01.2026 but, as of date, the
counselling is complete for the Regular PG seats
except for the Stray Round.
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3. Sri Sunil S. Desai, the learned counsel for
the petitioners submits that it is settled that there
cannot be an arbitrary reduction in the seats
reserved for In-service candidates, but the
decategorization even before the completion of all the
rounds of counselling with an intervening reduction
in the percentile brings about the same result i.e.,
reducing the seats earmarked for In-service
candidates and therefore, there must be just
directions. The learned counsel also proposes to rely
upon certain interim directions issued for the
Academic Year 2022-23 directing the DME/ KEA not
to decategorize seats reserved for In-service
candidates till a decision is taken on lowering the
percentile.
4. Sri Sunil S. Desai emphasizes that the
DME's/KEA decision in the last two academic years
to decategorize unfilled In-service candidates
immediately after the first/second-round counselling
is despite the directions of a Coordinate Bench of this
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Court on 27.02.2025 in Writ Petition No.1609 of 2025
and connected matters, and the learned counsel
invites this Court's attention to the directions which
read as under.
"xxx However, we make it clear that it is for
the MCC, NMC and KEA to provide for reasonable
cut off marks for selection to Medical PG Seats
and to provide a reasonable time for
decategorization of seats so that any decision to
lower the eligibility criteria will also be taken into
account before such decategorization is effected.
These matters shall be appropriately considered
by the authorities concerned in future selections."
5. Smt. Surabhi Kulkarni, the learned
counsel for the KEA, relying upon the details
furnished as called for by this Court on 27.02.2026,
submits that [i] 550 seats were reserved for In-service
candidates comprising 433 Regular PG seats and 118
Diplomate of National Board (DNB); [ii] that only 75
candidates were eligible for allotment of seats under
the In-service category; [iii] that out of these 75
candidates, 62 are allotted Regular PG seats and 8
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are allotted DNB seats in the first/ second round
counselling; [iv] that 371 Regular PG seats remained
vacant after the second round counselling; and [v]
that, as a consequence of the decategorization of
these seats for non-In-service Candidates, the
allotment is complete as of today.
6. In clarification, Smt. Surabhi Kulkarni
submits that if the decategorization of 371 seats of
Regular PG seats was on 23.12.2025 immediately
after the completion of the second round counselling
for the In-service candidates [except for some seats
decategorized in view of the orders in another writ
petition] have been allotted to non In-service
candidates in the round that is concluded on
24.12.2025 and mop-up round concluded on
25.01.2026.
7. Sri Rueben Jacob, a learned Additional
Advocate General, adopting these statistics submits
that the petitioners who were not eligible as on the
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date of decategorization cannot assert a right to be
allotted seats which remained vacant only because of
a possible later decision to reduce the percentile, and
the learned Additional Government Advocate submits
that if the petitioners' ineligibility is one aspect of the
matter, the other aspect is that the seats available for
allotment cannot be blocked for a contingency that
may be with the MoHFW possibly reducing the
percentile.
8. Sri. M.B. Kanavi and Sri. Anoop
Deshpande, the learned Central Senior Standing
Counsel and the learned counsel for National Medical
Council ['the NMC'], submit inter alia that the MoHFW
takes a decision on the percentile and revisits the
decision on the percentile considering a host of
circumstance based on the data made available by
the Exam Conducting Authorities across the Country.
The learned counsels underscore that neither the
MoHFW nor the NMC has any role to play in
decategorization of seats as the decision is by the
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State Governments and the State Examination
Conducting Authority.
9. In the circumstance of the case and the
rival submissions, this Court formulates the following
two questions for consideration.
(i) Whether this Court must infer a right in
the petitioners to insist upon deferment
of the allocation of In-service quota
seats that remain unallotted after
certain rounds of counselling because
the MoHFW may reduce the percentile
[the eligibility] for admissions to
Regular PG/ DNB; and
(ii) Whether this Court, if it could opine
that some action must be initiated for
lowering the percentile by the
authorities, direct that such action be
taken timely to avoid a spate of
litigations during every academic year.
10. This Court's consistent view has been that
those who acquire eligibility after the completion of
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the second-round counselling or mop-up round
counselling [because of a later decision to reduce the
percentile] will have no right to contest the decision
to decategorize the seats earmarked for In-service
Candidates that remain unallotted after such rounds
of counselling. In this context, this Court must refer
to the following expositions by a Co-ordinate Bench of
this Court in two different proceedings.
In W.P. No.1609/2025 and connected matters1
"10. xxx This apparently has been done in
the second round for counselling. The petitioners,
who acquired eligibility much later, would have no
right to contend that the decategorization which
happened earlier ought not to have been resorted
to. We are supported in our view by the judgment
of this Court dated 30.03.2022 in
W.P.No.6735/2022, which has been up before the
Apex Court without success."
1 These writ petitions are decided on 25.02.2025
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In W.P. No.31842/2024 and connected matter2.
"xxx As general candidates, they have no
right to contend that other persons should not
have been permitted to participate in the selection
for the in-service quota seats. The eligibility of the
petitioners having occurred only much later, we
are of the clear view that the petitioners do not
have the locus standi to contend that the criteria
for selection of in-service candidates was illegal."
11. The exposition is that the candidates must
be eligible as on the date of the decision on
decategorization, or even on some change in criteria.
This exposition, especially the exposition in the first
decision, must apply on all fours. The second-round
counselling for the allotment of seats reserved for In-
service candidates is completed on 23.12.2025
followed by a decision to decategorize the unallotted
seats for allotment to non-In-service candidates. The
petitioners, inarguably, were ineligible as on the date
of decategorization.
2 These writ petitions are decided on 27.02.2025
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12. The MoHFW's decision to lower the
percentile is on 13.01.2026, and the petitioners rely
upon this decision to assert a right, but by this date,
the allotment of some of the decategorized seats has
been completed in the subsequent round of
counselling, with the counselling on 24.12.2025. This
Court in opining thus is also cognizant of the fact
that the decision on lowering the percentile is mostly
a contingency; and if the seats that remain vacant
are not allotted because of a possibility, that must
lead to blocking of seats to accommodate a situation
which may not come about. The first question is
answered accordingly.
13. The petitioners contend that until the
Academic Year 2022-23, the decision to decategorize
In-service seats was being taken only after the mop-
up round, but for the years beginning from the
Academic Year 2023-24, the decision to decategorize
the seats is taken immediately after completion of the
second round, and that this results in reducing the
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seats for In-service candidates especially when
MoHFW later lowers the percentile [the eligibility]. The
petitioners also assert that this decision to lower the
percentile is made when the counselling process itself
is underway, either in the mop-up round or in the
stray round.
14. A Co-ordinate Bench of this Court in its
decision on 27.02.2025 [supra] has observed that
there must be a timely decision on lowering the
percentile [the eligibility] so that the decision to
decategorize unallotted seats reserved for In-service
candidates is taken in the light of the same. This
Court's observation reads as under:
"x x x However, we make it clear that it is
for the MCC, NMC, and KEA to provide for
reasonable cut off marks for selection to Medical
PG Seats and to provide a reasonable time for
decategorization of seats so that any decision to
lower the eligibility criteria will also be taken into
account before such decategorization is effected.
These matters shall be appropriately considered
by the authorities concerned in future selections."
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This Court's observations and directions as aforesaid
have not prevented litigation. The DME/KEA has
decided on decategorization on 23.12.2025 and the
MoHFW has decided on lowering the percentile on
13.01.2026. The decision to lower the percentile [the
eligibility] is much after the decision to decategorize.
15. The DME/KEA and the MoHFW/NMC
must decide in concert, and to ensure that this
happens, in this Court's considered view, the onus
must be on the DME and the KEA. They must ensure
that the Calendar for Counselling, the details of the
eligible candidates in terms of the notified percentile
and all the other details are shared with the MoHFW
at the earliest so that a timely decision is taken as is
observed by the Co-ordinate Bench of this Court on
27.02.2025, which is reiterated by this Court in this
order. The second question is answered accordingly
with just directions in this regard. It is needless to
observe that the directions do not confer a right, and
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they are to ensure that the Courts are not repeatedly
called upon to reiterate the directions in multiple
petitions each year.
ORDER
[A] The petition stands disposed of calling
upon the DME and KEA to ensure that
the details as aforesaid are
communicated to the Ministry of Health
and Family Affairs, Union of India, at the
earliest so that a decision, if any, on
lowering the eligibility [the percentile] is
in the light of the circumstances that are
timely.
Sd/-
(B.M. SHYAM PRASAD)
JUDGE
Sd/-
(SHIVASHANKAR AMARANNAVAR)
JUDGE
KGK, KMS/ CT: ASC
List No.: 2 Sl No.: 8
