Case: Maha P. &amp; Ors Vs. The State of Kerala &amp; Ors

2. The National Testing Agency invited online applications for NEET-UG 2021-22 from 1 June 2021 to 21 June 2021. The last date for submitting applications was extended to 24 June 2021. A notification was issued on 25 June 2021 granting an opportunity to candidates to make corrections to their applications. The candidates were allowed to rectify defects from 11 September 2021 to 17 September 2021. Two extensions for the submission of documents were given. The Government issued orders permitting the NRI candidates to cure defects in attestation by 31 March 2022.3. The private institutions reserve 15% of the total seats for the NRI category. The unaided private medical colleges in the State of Kerala have a total of 358 seats in the NRI quota. The rank list of the eligible NRI quota candidates in NEET-UG 2021-22 was exhausted after two rounds of counselling conducted by the Commissioner for Entrance Examination (CEE). However, even after the exhaustion of the NRI rank list, 57 seats were vacant. The Kerala Private Medical College Management Association (respondent association) made a representation to the CEE on 17 March 2022, requesting the authority to invite fresh applications to fill up the vacant seats in the NRI quota on the ground that many students were unable to submit the required documents before the cut-off date due to the Covid-19 pandemic. A writ petition was instituted on 24 March 2022 seeking a direction to grant time to candidates to register for the NRI quota seats before the commencement of the mop-up counselling. By an order dated 29 March 2022, the Single Judge of the Kerala High Court directed the CEE to consider the representation filed by the respondent association. Pursuant to the judgment of the Single Judge, the respondent association made another representation to the CEE on 30 March 2022. The CEE considered the representation and by an order dated 31 March 2022 held that no further extension of time could be provided since candidates had been given sufficient time to apply for the NRI quota:During this year, the applicants had been given sufficient time to apply for NRI quota. After two phases of allotments there are about 300 students remaining in the NRI category list and awaiting for allotment. The mop up counselling process is going on and the allotment is scheduled to be published on 02.04.2022. As per MCI schedule, the admission to MBBS course has to be completed before 05.04.2022.In these circumstances, it is not possible to invite fresh applications for NRI quota. Hence, your demand in the representation could not be considered.The CEE transferred 47 vacant NRI seats in private medical institutions to the general state quota for the mop-up round. The Single Judge of the Kerala High Court dismissed the writ petition on 4 April 2022 observing that:(i) Out of the 358 NRI seats in the State of Kerala, 300 seats were filled up before the second allotment. At the time of the filing of the writ petition, about 57 seats in the NRI quota were vacant. After the interim order dated 29 March 2022, a few more students exercised their options. As of date, there are 46 vacant NRI quota seats;(ii) Sufficient time was granted to the NRI quota candidates to exercise their options. The classes have commenced. The last date for admission is 5 April 2022; and(iii) The CEE would be at liberty to transfer vacant seats in accordance with clause 5.5.4 of the Prospectus for admission to Kerala Engineering, Architecture, and Medical courses (prospectus). There is no challenge to the prospectus. If any further extension is granted for fresh registration, it would disrupt the academic schedule.4. The writ appeal against the judgment of the Single Judge was dismissed by the Division Bench by its impugned judgment on 8 April 2022 on the following grounds:(i) Clause 5.5.4 of the Prospectus provides that the vacant seats in the special reservation category, including the quota for persons with disabilities will be transferred to the mandatory reservation quota. Clause 5.5.4 is an inclusive provision that includes the NRI quota seats within the phrase special reservation; and(ii) The CEE need not seek the permission of the members of the respondent association before converting the vacant NRI seats as per clause 5.5.4 of the prospectus; and(iii) The last date for admission to MBBS courses is 8 April 2022. Therefore, time for fresh registration in the NRI quota cannot be granted. The NRI quota candidates were granted sufficient time to exercise their options. The rank list was published on 24 December 2021. Thus, it can be assumed that no eligible NRI candidate is available to exercise the options for the vacant seats.

Reasoning: 9. Clause 4.1.4 of the Prospectus defines Special Reservation as seats reserved for specific categories, for certain specific courses. Clause 5.2 provides a list of special category reservations which include Ex-servicemen Quota, dependent of Defence personnel killed/missing/disabled in action, serving Defence Personnel, CAPF, and Jewish quota. Furthermore, quotas specific to courses are also termed special reservations. For instance, degree holders in MBBS and BHMS have a quota in BAMS course, degree holders in Ayurveda and Homeopathy have a quota in the MBBS course, children of Agriculturists have a quota in BSc. (Hons.) Agri. Degree, and the children of Fishermen in BFSc. course. Clause 4.1.5 which stipulates the breakup of reservation makes it evident that only vertical reservation as mandated by Article 15, that is for the socially and educationally backward classes (SEBC) and economically weaker section (EWS) of the unreserved category are brought within the phrase mandatory reservation. Clause 5.5.4 is broadly worded. Though the reservation for persons with disabilities (PwD) does not find a place in clause 5.2 of the proposal, clause 5.5.2 states that unavailed seats of special reservation including PwD would be transferred to mandatory reservation quota.10. The Single Judge and the Division Bench of the High Court held that CEE can transfer the unavailed seats of the NRI quota to the State merit quota under Clause 5.5.4. The High Court held that Clause 5.5.4 was broadly worded to include the NRI quota within the meaning of special reservation. The prospectus does not mention the NRI quota in chapter 4 which is titled reservation of seats for various courses. The only reference to the NRIs in the prospectus is in clauses 2.2, 5.7 and 7.6(i). Clause 2.2 states that the categorization of seats in self-financing colleges run by institutions shall be notified separately. It also stipulates that the NRI seats in self-financing medical colleges shall be allotted by common counselling. Clauses 5.7 and 7.6(1) provide information on the documents required to be submitted under the NRI quota. The phrase special reservation cannot be read to include the NRI quota when the prospectus does not stipulate the NRI quota as a category of reservation under Clause 4. Moreover, Clause 2.2 states that the categorization of seats in self-financing colleges shall be notified separately. Even if the argument that the NRI quota is a special reservation is accepted, the unoccupied seats can only be transferred to the mandatory quota (i.e SEBC and EWS reservation seats). However, in the present matter, the CEE has transferred the unoccupied NRI quota seats to State merit. Therefore, the reasoning of the High Court that the respondent could transfer the unoccupied NRI quota seats to state merit by virtue of clause 5.5.4 is erroneous.12. In Modern Dental College (supra), petitions were filed challenging the constitutional validity of the Madhya Pradesh Niji Byavsayik Shikshan Sanstha (Pravesh Ka Viniyaman Avam Shulk Ka Nirsharan) Adhiniyam 2007 and the Rules framed thereunder. This Court held that the provisions of the 2007 Act providing that the entire selection process for admission to UG and PG medical courses and fee fixation shall be done by the State Government is contrary to the principles laid down by the eleven-Judge Bench in TMA Pai Foundation v. State of Karnataka (2002) 8 SCC 481  and PA Inamdar v. State of Maharashtra (2005) 6 SCC 537 . However, this Court issued an interim order for admission to the medical seats in unaided colleges for the academic term of 2009-10:We, therefore, direct that the admissions in the private unaided medical/dental colleges in the State of Madhya Pradesh will be done by first excluding 15% NRI seats (which can be filled up by the private institutions as per para 131 of Inamdar case [(2005) 6 SCC 537]  ), and allotting half of the 85% seats for admission to the undergraduate and post-graduate courses to be filled in by an open competitive examination by the State Government, and the remaining half by the Association of the Private Medical and Dental Colleges. Both the State Government as well as the Association of Private Medical and Dental Colleges will hold their own separate entrance examination for this purpose. As regards the NRI seats, they will be filled as provided under the Act and the Rules, in the manner they were done earlier.A dispute arose over the unfilled seats in the 15% seats that are set aside for NRIs. In RD Gardi Medical College v. State of MP (2010) 10 SCC 225, 10  NRI quota seats in the petitioner-college were unfilled. The High Court held that the unfilled NRI seats have to be shared between the State and the petitioner-college in equal proportion. This Court dismissed the appeal against the judgment of the High Court observing that the order was in compliance with the judgment in Modern Dental College (supra) where it was directed that the NRI seats be filled as provided under the Act and the Rules, in the manner they were done earlier. Since Rule 8 of the Admission Rules 2008 stipulated that the vacant NRI seats shall be merged into the general pool, it was held that the vacant NRI seats were filled up in accordance with the judgment in Modern Dental College (supra):28. A plain reading of the above leaves no manner of doubt that unfilled NRI seats had to be transferred to the general pool to be filled up on the basis of the merit of the candidates in the State-level common entrance test conducted by the Madhya Pradesh Vyavsayik Pariksha Mandal or by any other agency authorised by the State Government for that purpose. The unfilled seats in the NRI quota were, therefore, to be treated as a part of the general pool and once that was done the share of the College in terms of the order passed by this Court would be 50% out of the said seats. The High Court has, in that view, rightly held that while the management was justified in filling up 5 unfilled seats in NRI quota, the remaining 5 could not have been filled up otherwise than on the basis of the entrance test referred to in Rule 8.13. In view of the observations in RD Gardi Medical College (supra), IAs were filed for modication/clarification of the orders passed by the two-Judge Bench in Modern Dental College (supra) and RD Gardi Medical College (supra). This Court noted that there is a conflict between the observations in para 28 of the judgment in RD Gardi Medical College (supra) and para 27(1) of TMA Pai Foundation v. State of Karnataka (1995) 5 SCC 220 . In TMA Pai (supra), it was observed that the college shall admit students in the order of merit in the vacant NRI quota seats. Therefore, the matter was referred to a larger Bench. However, the larger Bench could not resolve the apparent conflict before the admissions for the academic year 2011-12 were to begin.14. The same issue of transfer of vacant NRI seats arose in the academic year of 2012-13. A two-judge Bench by an order dated 9 December 2011 had directed that the matter be placed before a Constitution Bench. However, since the matter was not likely to be heard by a Constitution Bench shortly, a three-Judge Bench in Modern Dental College and Research Centre v. State of Madhya Pradesh (2012) 4 SCC 707,  Modern Dental College and Research Centre, heard the IAs on the issue of transfer of unfilled NRI seats for the academic term of 2012-13. Allowing the IAs, it was observed that the finding in RD Gardi Medical College (supra) is contrary to the judgments of the Constitution Bench in TMA Pai Foundation v. State of Karnataka (1994) 4 SCC 728,  a three- Judge Bench in TMA Pai Foundation v. State of Karnataka (1995) 5 SCC 220,  and Inamdar (supra). The Court observed:18. We are of the considered view that the above principles laid down by the larger Benches of this Court, in the matter of filling up of NRI seats were not correctly understood or applied by this Court in R.D. Gardi Medical College [(2010) 10 SCC 225]  while interpreting Rule 8 of the M.P. Admission Rules, 2008. The finding recorded in R.D. Gardi Medical College [(2010) 10 SCC 225]  that the unfilled seats in NRI quota in unaided professional colleges should be treated as a part of the general pool and be shared equally by the State and the unaided professional colleges goes contrary to the principles laid down by the eleven-Judge Bench in Pai Foundation [(2002) 8 SCC 481]  , Inamdar [(2005) 6 SCC 537]  as well as the judgments rendered by the three- Judge Bench [Ed. : And the judgment rendered by the five-Judge Bench in Pai Foundation, (1994) 4 SCC 728 .] in Pai Foundation [(1995) 5 SCC 220]  , referred to earlier. The wrong interpretation given in R.D. Gardi Medical College [(2010) 10 SCC 225]  is seen incorporated in Rule 5 of the Madhya Pradesh Private Medical and Dental Undergraduate Course Entrance Examination Rules, 2011 as well, which in our view cannot be legally sustained.15. The Constitution bench in TMA Pai Foundation (supra) had held that the unfilled NRI quota seats can only be filled by the management at its discretion:3. So far as the NRI quota is concerned, we fixed the same as 15% last year. We fixed the NRI quota in respect of minorities institutions as 5%. Although the NRI quota should not, normally, be more than 5%, but keeping in view the reduction in the fee structure, we fix the same as 10% (of the total seats) for this year. We further make it clear that in case any seat in the NRI quota remains unfilled, the same can be filled by the management at its discretion.The three judge Bench in TMA Pai Foundation (supra) reiterated the observations of the Constitution Bench:(1) So far as NRI quota is concerned, it is fixed at fifteen per cent for the current academic year. It shall be open to the management to admit NRI students and foreign students within this quota and in case they are not able to get the NRI or foreign students up to the aforesaid specified percentage, it shall be open to them to admit students on their own, in the order of merit, within the said quota. This direction shall be a general direction and shall operate in the case of all the States where admissions have not been finalised. It is, however, made clear that by virtue of this direction, no student who has already been admitted shall be disturbed or removed.16. In Modern Dental College and Research Centre (supra), an IA was filed challenging the transfer of unfilled NRI seats to the State. However, in the matter before us, only an extension of time for the submission of documents necessary for applying for the NRI quota seats was sought. The prayer in the writ petition is extracted below:i. Issue a Writ of Mandamus or such other writ, order or direction directing the Respondents to grant time for fresh registration in NRI Quota to the eligible before commencement of the Mop-up counselling.ii. Issue a Writ of Mandamus or such other writ, order or direction directing, the 3rd Respondent to consider and pass orders in Exhibit P3 representation within a time limit to be fixed by this Honble Court.iii. Permit the members of the Petitioner association to admit the NEET qualified eligible students who produce the necessary documents in NRI Quota before the cut off date stipulated by the Kerala University of Health Sciences vide Exhibit P4, in the event the Respondents does not invite fresh applications in the NRI Quota.Issue such other writ, order, or direction as may be just and necessary in the interest of justice.17. Moreover, the observations in Modern Dental College and Research Centre (supra) were made concerning admissions for the year 2011-2012. The principal issue of whether the unfilled NRI seats in unaided universities can be transferred to the State is pending before the Constitution Bench. Further, the observations made in PA Inamdar (supra) and the Constitution Bench in TMA Pai (supra) will have to be read with Article 15(5) which was included by the Constitution (Ninety-third Amendment) Act 2005.18. The names of only 7 of the 37 appellants find place in the NRI category list which was published by CEE on 31 January 2022. The respondent has submitted that of the 7 appellants whose names find place in the NRI category list, only 4 of them had registered options for NRI seats. However, candidates who had received a higher rank than them were allotted those seats. Further, it was also submitted by the respondent that none of the 7 candidates registered their options for the 45 NRI seats that were later converted to unreserved seats. The respondent submits that only because none of the 7 candidates registered their options concerning NRI seats, were the seats converted to unreserved seats to prevent the seats from lying vacant.19. Since the appellants have not challenged the provisions of the Information Bulletin which stipulate that the vacant NRI seats shall be converted to unreserved seats during the mop-up round, we cannot decide on the legality of such a conversion of seats. The 4 appellants who had registered their options for NRI seats had not exercised their options with respect to any of the vacant 45 NRI seats. The respondents merely complied with the provisions of the Information Bulletin which is not in challenge before us in the present proceedings. The respondent association had only sought an extension of time for submission of documents by candidates seeking to apply for the NRI quota seats. The representation was rejected by CEE since sufficient time and extension had been given for the submission of the documents. The appellants have not contended that the rejection of the representation was malafide or arbitrary.