Case: NILAY GUPTA Vs. CHAIRMAN NEET PG MEDICAL AND DENTAL ADMISSION/COUNSELLING BOARD 2020 AND PRINCIPAL GOVT. DENTAL COLLEGE &amp; ORS

of the writ petitioners before him. However, the broad nature of the relief granted resulted in creation of rights which, implicated parties had not in the first instance, approached the High Court (unlike Dr. Nilay Gupta or Dr. Surmil Sharma), at the cost of third parties who had by then been given admission based on their merit as management quota students, another set of individuals who had not professed any grievance, were given admission, post judgement of the single judge. 30. The preceding observations ought to have been dispositive of the present case. Nevertheless, the court is of the opinion that the discretion of private managements who set up and manage medical colleges cannot be left to such an untrammelled degree as to result in unfairness to candidates. Undoubtedly, these private institutions have the discretion to factor in an NRI or any other permissible quota. Yet that discretion should be tempered; if the discretion to have such a quota is exercised, it should be revised or modified reasonably, and within reasonable time. This case presents some unusual features in that the admission calendar appears to have been thrown out of gear on account of the Covid-19 pandemic. The NEET written test was held in January, and the results were declared on i.e. 31.01.2020. At that stage, and soon thereafter till the end of March, the thinking of the colleges and the board appears to be that the NRI quota in private medical colleges would be maintained (evident from the minutes of meeting dated 17.03.2020). The rapidity with which the pandemic progressed perhaps generated a broad consensus among private colleges that going ahead with the NRI quota would be inadvisable. This court cannot comment on the wisdom of such thinking as it falls within the exclusive domain of private decision-making. What is striking however is that even when this thinking was emerging, the original schedule, and the sequence for filling up of the NRI seats was maintained – and even rescheduled. Thus, in terms of the boards notification of 10.04.2020, the NRI students documents were to be verified on 14.04.2020. Apparently, immediately a day after that notification, on 11.04.2020 to be precise, the private colleges en masse appear to have decided not to proceed with the NRI quota and instead merge it with the 35% management quota seats, and proceed to fill them entirely based upon rank based merit of the management quota candidates arranged in terms of their ranking and performance in the NEET. NRI candidates were to be treated as management quota candidates, and their applications too, considered on the basis of their overall merit in that category. Viewed in isolation, this decision is perfectly valid; it gives one the impression that NRI students were not prejudiced. Undoubtedly, the decision to abolish the NRI quota was exclusively within the scope of the private institutions decision-making. Yet what is apparent is that by this time, the NRI students had not only started applying for counselling, but had also submitted all their documents for verification to determine their eligibility for the NRI quota seats, and in a sense, committed themselves as candidates for NRI quota seats in Rajasthan for whatever perceived advantages they could reasonably see in their favour. Hence, when the matter stood thus, when the final seat matrices were published on 13.04.2020, it acted to the unfair detriment of these NRI students. 31. Noticeably, the writ proceedings initiated by the two candidates (Dr. Nilay Gupta and Dr. Surmil Sharma) did not claim that it was representative in character. It only sought to highlight the arbitrariness in the admission procedure and premised it largely upon the violation of the mandate of this court in P A Inamdar (Supra n.1) . As held earlier, private medical colleges are not obliged to provide for such NRI quota seats to the extent of 15% in any given year, but the peculiarities of this case, which are: the prevailing pandemic, the various steps which impelled the NRI quota candidates to commit themselves, and the eleventh hour policy change brought about through the final matrix published on 13.04.2020, acted to the distinct disadvantage of these NRI candidates. It also appears from the record that most of the students reconciled themselves to their candidature being considered on merits at par with the management quota candidates. Many such NRI students who did not approach the court were given admission in disciplines other than their primarily choices, due to their relative standing in the state merit list of NEET eligible candidates. 32. The directions of the single judge injected in an altogether different dimension to the facts in directing that the writ petitioners before him be given admission, rather than leaving it to the board. A pandoras box of fresh claims appears to have been opened up. This resulted in a so-called second round of counselling exclusively meant for NRI candidates (in the second and third week of July, 2020), resulting in the drawing up of an NRI quota list, which was then acted upon. The resultant displacements led to those who had been given admission based upon the relatively higher merit ranking in the management quota, approaching the Division Bench with third-party appeals. The Division Bench set aside the single judges directions. Another round of admissions to postgraduate seats was given to the third-party appellants. It therefore falls upon this court to work out the most equitable manner of ensuring that the least disturbance occurs in the particular circumstances of this case. 33. As a result of the above discussion, it is evident that the NRI quota is neither sacrosanct, not inviolable in terms of existence in any given year, or its extent. However, if a medical college or institution or, for that matter, the state regulating authority, such as the board in the present case, decide to do away with it, reasonable notice of such a decision should be given to enable those aspiring to such seats to choose elsewhere, having regard to the prevailing conditions.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]20. The provisions of the Rajasthan University of Health Sciences Act, 2005 (Section 7) throws open admission to all courses, offered by medical colleges affiliated to the University, to be open to all, subject to such reservations as may be made in favour of Scheduled Caste, Scheduled tribe, Other backward classes, girl students and other categories in accordance with any law or orders of the State Government for the time being in force. By virtue of insertion of Section 10-D in the Medical Council of India Act, 1956 and regulations framed thereafter, participation in a common National Examination, ( NEET) by institutions offering medical courses – including postgraduation courses, as well as its attempt by candidates wanting admission, became compulsory. The governing enactment, which set up the respondent MGMC, is the Mahatma Gandhi University of Medical Sciences and Technology, Jaipur Act, 2011. It provides for the procedure to be adopted for admissions, as well as for reservations. Per proviso to Section 32(2), admission in professional courses is to be only through entrance test; By Section 32(3), reservations for scheduled castes, scheduled tribes, backward classes, special backward classes, women and handicapped persons shall be provided as per the policy of the State Government. Regulations framed pursuant to the amendment effected in 2016, to the Medical Council of India Act, in respect of admission to postgraduate medical courses, made it obligatory for both institutions and students alike to give effect to the common eligibility test (NEET).23. It is undoubtedly a matter of record that on 17.03.2020, when the board convened the meeting attended by representatives of all participating colleges (including private medical colleges offering seats in the postgraduate medical courses in Rajasthan), the unanimous thinking was to offer NRI/Management seats to the extent of 15% of the total admission intake. This 15% turned out to be about 22 seats in MGMC. In the same meeting, it was unanimously decided that the task of filling NRI seats would be taken up before filling the management seats; this meant as a corollary, that NRI counselling would be taken up first and after allocation of seats to suitable NRI candidates, the leftover seats would be filled by management quota candidates. This was followed by the submission of forms by NRI candidates for the purpose of verification of their documents. When the provisional seat matrix was published on 10.04.2020, it did not indicate that those opting for admission exclusively as NRI candidates would be considered as belonging to any other category. It was only on 11.04.2020 that the private colleges appear to have sent their final matrix to the board. This matrix, unbeknown to the NRI candidates, proposed deletion of the NRI quota. In the circumstances, when the final matrix was published for each college detailing the quotas for individual disciplines, the original earmarking for NRI candidates was absent.24. A plain reading of the judgement of this court in Inamdar (Supra n.1) reveals that a provision for 15% NRI quota was a not compulsory; it was only potential. This is clearly evident from the following passage in that judgment, which all counsel from either side of the bar, insisted on reading:Here itself we are inclined to deal with the question as to seats allocated for Non-Resident Indians (NRI, for short) or NRI seats. It is common knowledge that some of the institutions grant admissions to certain number of students under such quota by charging a higher amount of fee. In fact, the term NRI in relation to admissions is a misnomer. By and large, we have noticed in cases after cases coming to this Court, neither the students who get admissions under this category nor their parents are NRIs. In effect and reality, under this category, less meritorious students, but who can afford to bring more money, get admission. During the course of hearing, it was pointed out that a limited number of such seats should be made available as the money brought by such students admitted against NRI quota enables the educational institutions to strengthen its level of education and also to enlarge its educational activities. It was also pointed out that people of Indian origin, who have migrated to other countries, have a desire to bring back their children to their own country as they not only get education but also get reunited with Indian cultural ethos by virtue of being here. They also wish the money which they would be spending elsewhere on education of their children should rather reach their own motherland. A limited reservation of such seats, not exceeding 15%, in our opinion, may be made available to NRIs depending on the discretion of the management subject to two conditions. First, such seats should be utilized bona fide by the NRIs only and for their children or wards. Secondly, within this quota, the merit should not be given a complete go-by. The amount of money, in whatever form collected from such NRIs, should be utilized for benefiting students such as from economically weaker sections of the society, whom, on well-defined criteria, the educational institution may admit on subsidized payment of their fee. To prevent misutilisation of such quota or any malpractice referable to NRI quota seats, suitable legislation or regulation needs to be framed. So long as the State does not do it, it will be for the Committees constituted pursuant to Islamic Academys direction to regulate.Clearly, this court had the benefit of past experience with the concept of NRI quota: witness its skepticism about filling of such seats (in the past) by undeserving and unmerited candidates, to the detriment of more meritorious students. Therefore, the court indicated a limited quota with some essential controls in the manner of filling up of such NRI quota seats. These were:a) The NRIs, who wish to bring their children to this country not only for their education but also to get them reunited with the Indian cultural ethos by virtue of being here and to enable the NRIs to expend money, (which they would be spending elsewhere on education of their children) to reach their mother land.b) Having pointed out the reality behind the incorrect or misnamed NRI quota and found substance in the purpose behind allowing such quota, this court favoured a limited reservation, not exceeding 15% of sanctioned seats, to be made available for the NRIs, however, depending on the discretion of the management.c) This court, however, imposed two conditions for admission under the NRI quota, firstly, that such seats should be utilized bona fide by NRIs only and for their children or wards and secondly, that within this quota, merit should not be given a complete go by.25. The four crucial elements in the NRI quota, per Inamdar (Supra n.1) are: one, the discretion of the management (whether to have the quota or not); two, the limit (15%); three, that seats should be available for genuine and bona fide NRI students, and lastly that the quota was to be filled based on merit.27. Earlier, the break of seats published on 17.03.2020, stated that 15% of the total intake in PG medical courses were to be filled by NRI/management quota aspirants; the sequence to be adopted undoubtedly clarified that in the order of things, the NRI candidates applications would be considered first for counselling and admissions, and the left over seats would then be filled from amongst merited management quota applicants, in addition to the 35% management seat candidates. The colleges, however consciously decided not to go-ahead with the NRI quota - a decision, the basis of which is explained as the assessment by such private colleges offering MD courses, that there was a likelihood that many NRI seats would go unfilled.28. Given that the decision in TMA Pai Foundation (Supra n.3) was by a larger bench of 11 judges, and P A Inamdar (Supra n.1) was a judgment delivered by seven judges, this court is clear that precedentially, those and other previous judgements of this court, only declared that as a part of the private colleges autonomous decision making, they could set apart some percentage of seats for admission to students of their choice. The Inamdar (Supra n.1) decision is important, inasmuch as it declared that the set apart (or quota, so to say) for NRIs should be about 15% of the overall intake. Other decisions of this court (Modern Dental College & Research Centre (supra) and the recent decision in Christian Medical College Vellore Association v. Union of India, 2020 SCC OnLine SC 423) have underlined the paramountcy of the NEET requirement as a common standard regulating medical courses admissions in India, irrespective whether the courses are offered in publicly owned, state owned or privately owned or managed institutions. A combined effect of the provisions of the Medical Council of India Act and regulations with respect to admissions (which have been progressively amended in respect of eligibility for admission to courses, procedure for admission, etc.) and the decisions of this court, is that private colleges and institutions which offer such professional and technical courses, have some elbow room: they can decide whether, and to what extent, they wish to offer NRI or management quotas (the limits of which are again defined by either judicial precedents, enacted law or subordinate legislation). In these circumstances, it is held that the respondent management (of MGMC) possessed the discretion to indicate whether, and to what extent, NRI reservations could be provided. As is evident, there is nothing in P A Inamdar (Supra n.1) to say that a 15% NRI quota is an unqualified and unalterable part of the admission process in post graduate medical courses. It was, and remains within the discretionary authority of the management of private medical colleges, within their internal policy making domain.29. The impugned judgment, in this courts opinion, is correct, in that it held that the single judge could not have directed admission of the candidates before him. There is a body of case law (Tirumala Tirupati Devasthanams v. K. Jotheeswara Pillai, (2007) 9 SCC 461 ; Bihar Eastern Gangetic Fishermen Coop. Society Ltd. v. Sipahi Singh (1977) 4 SCC 145 ; K.V. Rajalakshmiah Setty v. State of Mysore, AIR 1967 SC 993 .) which clarifies that sans a statutory duty, a positive direction to do something in a specific manner, cannot be given (it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance.(Bihar Eastern Gangetic Fishermen Coop. Society Ltd. v. Sipahi Singh, (1977) 4 SCC 145.)  ). The NRI candidates could not assert a right to be admitted; furthermore, while granting relief, the single judge could at best have directed consideration of the cases of the writ petitioners before him. However, the broad nature of the relief granted resulted in creation of rights which, implicated parties had not in the first instance, approached the High Court (unlike Dr. Nilay Gupta or Dr. Surmil Sharma), at the cost of third parties who had by then been given admission based on their merit as management quota students, another set of individuals who had not professed any grievance, were given admission, post judgement of the single judge.30. The preceding observations ought to have been dispositive of the present case. Nevertheless, the court is of the opinion that the discretion of private managements who set up and manage medical colleges cannot be left to such an untrammelled degree as to result in unfairness to candidates. Undoubtedly, these private institutions have the discretion to factor in an NRI or any other permissible quota. Yet that discretion should be tempered; if the discretion to have such a quota is exercised, it should be revised or modified reasonably, and within reasonable time. This case presents some unusual features in that the admission calendar appears to have been thrown out of gear on account of the Covid-19 pandemic. The NEET written test was held in January, and the results were declared on i.e. 31.01.2020. At that stage, and soon thereafter till the end of March, the thinking of the colleges and the board appears to be that the NRI quota in private medical colleges would be maintained (evident from the minutes of meeting dated 17.03.2020). The rapidity with which the pandemic progressed perhaps generated a broad consensus among private colleges that going ahead with the NRI quota would be inadvisable. This court cannot comment on the wisdom of such thinking as it falls within the exclusive domain of private decision-making. What is striking however is that even when this thinking was emerging, the original schedule, and the sequence for filling up of the NRI seats was maintained – and even rescheduled. Thus, in terms of the boards notification of 10.04.2020, the NRI students documents were to be verified on 14.04.2020. Apparently, immediately a day after that notification, on 11.04.2020 to be precise, the private colleges en masse appear to have decided not to proceed with the NRI quota and instead merge it with the 35% management quota seats, and proceed to fill them entirely based upon rank based merit of the management quota candidates arranged in terms of their ranking and performance in the NEET. NRI candidates were to be treated as management quota candidates, and their applications too, considered on the basis of their overall merit in that category. Viewed in isolation, this decision is perfectly valid; it gives one the impression that NRI students were not prejudiced. Undoubtedly, the decision to abolish the NRI quota was exclusively within the scope of the private institutions decision-making. Yet what is apparent is that by this time, the NRI students had not only started applying for counselling, but had also submitted all their documents for verification to determine their eligibility for the NRI quota seats, and in a sense, committed themselves as candidates for NRI quota seats in Rajasthan for whatever perceived advantages they could reasonably see in their favour. Hence, when the matter stood thus, when the final seat matrices were published on 13.04.2020, it acted to the unfair detriment of these NRI students.31. Noticeably, the writ proceedings initiated by the two candidates (Dr. Nilay Gupta and Dr. Surmil Sharma) did not claim that it was representative in character. It only sought to highlight the arbitrariness in the admission procedure and premised it largely upon the violation of the mandate of this court in P A Inamdar (Supra n.1) . As held earlier, private medical colleges are not obliged to provide for such NRI quota seats to the extent of 15% in any given year, but the peculiarities of this case, which are: the prevailing pandemic, the various steps which impelled the NRI quota candidates to commit themselves, and the eleventh hour policy change brought about through the final matrix published on 13.04.2020, acted to the distinct disadvantage of these NRI candidates. It also appears from the record that most of the students reconciled themselves to their candidature being considered on merits at par with the management quota candidates. Many such NRI students who did not approach the court were given admission in disciplines other than their primarily choices, due to their relative standing in the state merit list of NEET eligible candidates.32. The directions of the single judge injected in an altogether different dimension to the facts in directing that the writ petitioners before him be given admission, rather than leaving it to the board. A pandoras box of fresh claims appears to have been opened up. This resulted in a so-called second round of counselling exclusively meant for NRI candidates (in the second and third week of July, 2020), resulting in the drawing up of an NRI quota list, which was then acted upon. The resultant displacements led to those who had been given admission based upon the relatively higher merit ranking in the management quota, approaching the Division Bench with third-party appeals. The Division Bench set aside the single judges directions. Another round of admissions to postgraduate seats was given to the third-party appellants33. As a result of the above discussion, it is evident that the NRI quota is neither sacrosanct, not inviolable in terms of existence in any given year, or its extent. However, if a medical college or institution or, for that matter, the state regulating authority, such as the board in the present case, decide to do away with it, reasonable notice of such a decision should be given to enable those aspiring to such seats to choose elsewhere, having regard to the prevailing conditions.35. This court clarifies that the validity of deletion of the NRI quota altogether, by colleges, and their merger as part of the larger management quota, was not questioned as a general proposition; the premise on which the parties argued their cases was that the NRI quota is inflexible and cannot be altered. The time within which an institution decides to do away with the quota during an ongoing admission process has not been prescribed, inasmuch as the observations as to unfairness in the nature of the deletion is in the specific circumstances of this case. Likewise, the directions in the previous paragraph are with regard to the circumstances of this case, and to do complete justice to all parties.