NIPUN TAWARI & ORS versus THE STATE OF MAHARASHTRA & ORS.
[2022] 15 S.C.R. 591, Supreme Court of India, 2022
Outcome: Dismissed (Dismissed)
Segment: Ratio
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NIPUN TAWARI & ORS.
v.
THE STATE OF MAHARASHTRA & ORS.
(Civil Appeal No. 7778 of 2022)
OCTOBER 20, 2022
[DR. DHANANJAYA Y. CHANDRACHUD AND
HIMA KOHLI, JJ.]
Education/Educational Institutions: Medical admission – Post
Graduate Medical Degree courses in Maharashtra – Reservation
for in-service candidates – Issuance of admission brochure by the
Government of Maharashtra on 21.09.2022 – Clause 7.2 of the
brochure providing that 50% of seats in post graduate diploma
courses would be reserved for in-service candidates; and that for
in-service quota reservation, any change made by Government from
time to time would be applicable – Thereafter, issuance of
government Resolution dated 26.09.2022, providing for in-service
reservation to the extent of 20% seats in post graduate medical
degree courses for officers serving in government hospitals – Writ
petition by the appellants seeking that the resolution cannot be made
applicable for admissions to post graduate medical degree courses
for the 50% state quota in Government and Corporation run medical
colleges for the current academic year-2022-23 – High Court
dismissed the Writ Petition – On appeal, held: Provisions of the
brochure specifically placed students on notice that in- service
reservations would abide by such resolutions as may be issued by
the government from time to time – Thus, the brochure envisages
that there may be a change in the reservation policy for in-service
candidates and accounts for the same –
Rules of the examination
have remained constant and the Government Resolution dated
26.09.2022 did not change the rules after the admission process
had commenced – Selection criteria were not changed after the
selection process commenced – Government Resolution dated
26.09.2022 is in consonance with the brochure issued by the
Government of Maharashtra – Thus, judgment of the High Court
does not call for interference – Post Graduate Medical Regulations,
2000.
[2022] 15 S.C.R. 591
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Dismissing the appeal, the Court
HELD: 1.1 Clause 7.2 of the brochure issued by the State
Government provides that 50% of seats in post graduate diploma
courses would be reserved for in-service candidates. Clause 7.2
also provides that “for in-service quota reservation, any change
made by Government from time to time will be applicable”. An
additional weightage for in-service candidates was also prescribed
by Clause 7.2 in terms of clauses 9(IV) and (VII) of the MCI
Regulations. Clause 8.16.1 prescribes that the eligibility for in-
service candidates would be in terms of the Government
Resolution dated 19 March 2019 or any other Government
Resolution issued from time to time. Incentive marks of up to
10% marks for each year of service in remote and/or difficult
areas subject to a maximum of 30% of the marks obtained in the
NEET-PG 2022 was prescribed in Clause 8.17 of the brochure.
[Para 28][605-D-F]
1.2 Clause 3 of the Government Resolution dated 26
September 2022 which prescribes a reservation of 20% of the
State quota seats for in-service candidates also makes it clear
that an in-service candidate seeking admission to the general
category will not get any additional marks other than the marks
obtained in the NEET Examination. In other words, an in-service
candidate who opts for a seat in the general category would not
be entitled to any weightage of marks. The weightage of marks
is, therefore, prescribed in
relation to those candidates who aspire
for a seat in the 20% quota which is set apart for in-service
candidates. [Para 29][605-F-H]
1.3 The submission of the appellants that the Government
Resolution dated 26 September 2022 ought not to apply for the
current academic year on the ground that it has altered the ‘rules
of the game’ midstream cannot be accepted. The High Court has
principally rejected the submission of the appellants on the ground
that there was no challenge to the validity of the Government
Resolution dated 26 September 2022 in which event, it is not
permissible for the court to read it down so as to exclude its
applicability for the current academic year. [Para 30][606-A-B]
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1.4 There was no specific prohibition in the brochure in
the matter of reservation for in-service candidates. On the
contrary, Clause 7.2 of the brochure issued by the State of
Maharashtra clearly specified that in quota reservations would
abide by Government Resolutions as may be issued from time to
time. Following the decision of the Constitution Bench in Tamil
Nadu Medical Officers Association’s case, a writ petition was filed
before the High Court of Judicature at Bombay seeking
reservation for in-service candidates. In an order dated 24 January
2022, the High Court noted that there was a difference of
perspective between the Public Health Department and Medical
Education Department of the state. In this backdrop, the Division
Bench, while noting the view which was taken by the Constitution
Bench of this Court, adjourned the proceedings to 1 February
2022. Evidently, the State Government was in the process of
taking a final decision which was ultimately reflected in the
Government Resolution dated 26 September 2022. Thus, the
background of the facts indicated in the earlier part of the judgment
would show that there was a reservation for in-service candidates
in post graduate degree courses in the State of Maharashtra until
the situation came to be altered as a result of the decision of the
three-judge bench in Dinesh Singh Chauhan’s case. The validity
of reservation for in-service candidates in degree courses has
since been restored following the
decision of the Constitution
Bench in Tamil Nadu Medical Officers Association’s case. The
provisions in the brochure that in-service quota reservations
would abide by any change made by government from time to
time must be understood in the context of the above facts. [Para
31][606-C-G]
1.5 The provisions of the brochure specifically placed
students on notice that in- service reservations would abide by
such resolutions as may be issued by the government from time
to time. The issue, therefore, has to be construed in the specific
background of the facts as they pertained to reservation in the
State of Maharashtra for in-service candidates in post graduate
degree courses. [Para 32][607-A-B]
1.6 Clause 7.2 of the brochure issued by the State of
Maharashtra clearly specifies that the reservation policy for in-
NIPUN TAWARI & ORS. v. THE STATE OF MAHARASHTRA &
ORS.
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service candidates is subject to any changes made by the
government from time to time. Hence, the brochure envisages
that there may be a change in the reservation policy for in-service
candidates and accounts for the same. The rules of the
examination have remained constant and the Government
Resolution dated 26 September 2022 did not change the rules of
the game after the admission process had commenced. [Para
33][607-E-F]
1.7 The selection criteria were not changed after the
selection process commenced. To the contrary, the Government
Resolution dated 26 September 2022 is in consonance with the
brochure issued by the Government of Maharashtra. [Para
34][607-F-G; 608-A]
1.8 Out of 1416 post graduate medical degree seats in the
State of Maharashtra, 282 have been reserved for in-service
candidates. It would appear that 268 candidates obtained No
Objection Certificates from their departments to apply for the
in-service reservation. In the first round of counselling, 69
students were held to be eligible, having received marks above
the cut off. 52 candidates have been granted admission in a post
graduate medical program. [Para 35][608-B-C]
1.9 The Government of India, through the Ministry of Health
and Family Welfare, has issued a communication on 17 October
2022 providing for a reduction in the cut- off marks in the NEET-
PG 2022 by 25 percentile across all categories. Following the
above decision, it is likely that
additional candidates would become
eligible to participate in the subsequent rounds of counselling.
Moreover, from a reading of Clause 7.10 of the brochure, it is
apparent that if any seats which have been provided for the in-
service quota remain unfilled, they shall be distributed to the
‘non-in-service’ category of candidates using the NEET-PG 2022
merit list. [Para 36][608-D-E]
1.10 The judgment of the High Court does not call for
interference. [Para 37][608-E-F]
Tamil Nadu Medical Officers Association v. Union of
India (2021) 6 SCC 568 : [2020] 8 SCR 583 - followed.
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Dr Prerit Sharma v. Dr Bilu B S (2022) 2 SCC 751;
State of Uttar Pradesh v. Dinesh Singh Chauhan (2016)
9 SCC 749 : [2016] 6 SCR 571; Dr Suryakant Tejrao
Lodhe v. State of Maharashtra, Neil Aurelio Nunes (OBC
Reservation) v. Union of India (2022) 4 SCC 1; A. P.
Public Service Commission v. B. Swapna (2005) 4 SCC
154 : [2005] 2 SCR 991; Maharashtra SRTC v.
Rajendra Bhimrao Mandve (2001) 10 SCC 51 –
referred to.
Case Law Reference
[2016] 6 SCR 571
referred to
Para 18 (ii)
[2020] 8 SCR 583
followed
Para 24, 31
[2005] 2 SCR 991
referred to
Para 34
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7778
of 2022.
From the Judgment and Order dated 14.10.2022 of the High Court
of Judicature at Bombay in Writ Petition No. 11845 of 2022.
Anand Grover, Sr. Adv., Madhav Bhatia, Ashish Choudhary, Aditya
Pandey, Yogesh Sharma, Rohit Amit Sthalekar, Advs. for the Appellants.
Sanjay R Hegde, Sr. Adv., Govind Jee, Omanakuttan KK, Advs.
for the Respondents.
The Judgment of the Court was delivered by
DR DHANANJAYA Y CHANDRACHUD, J.
1. Leave granted.
2. This appeal arises from a judgment dated 14 October 2022 of a
Division Bench of the High Court of Judicature at Bombay.
3. The issue pertains to the reservation of 20% seats for in-service
candidates in post graduate medical degree courses by the State of
Maharashtra.
4. On 15 January 2022, the National Board of Examinations
released its information bulletin for the NEET PG-2022 examination.
The last date for registration for the
entrance test was 25 March 2022.
The examination was held on 21 May 2022. Results were declared on
1 June 2022.
NIPUN TAWARI & ORS. v. THE STATE OF MAHARASHTRA &
ORS.

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5. On 21 September 2022, the Government of Maharashtra issued
a notice setting out the schedule for conducting admissions for post
graduate medical courses. The schedule is extracted below:-
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6. On 21 September 2022, the Government of Maharashtra
(through its CET Cell) issued a brochure for admissions. Clause 7.2
provides as follows:
“7.2 The seats available for admission to medical postgraduate
courses will be distributed as 50% to All India Quota & remaining
50% to the State Quota. From the State quota, 50% of Seats in
post graduate diploma courses from State Government/Corporation
Medical Colleges will be reserved for In- service candidates in
the State Government services, who have served for at least 3
years in remote and/or difficult areas. For In-service quota
reservation, any change made by Government from time to time
will be applicable. The additional weightage for In-service
candidates will be given as per clause 9 (IV) & (VII) of Post
Graduate Medical Regulation 2000 of NMC / erstwhile MCI and
as per Public Health Department Government Resolution No.
MMO-2019/C.R.165/Service-3, dated 19th March 2019 and G.R
issued in this regard form time to time. 5% of available seats in
Postgraduate courses in Government and Government Aided
institutions will be reserved for Person with Disability (PWD)
candidates as per Annexure “D”. 1% of available postgraduate
seats are reserved for Orphan category candidate. There will be
constitutional reservation applicable in Available State quota seats,
(after excluding All India Quota) as mentioned in Annexure “C”.
The parallel (Horizontal) reservation will be applicable for In-
service quota seats, PWD
quota seats and Orphan quota seats in
Government and Government Aided institutions.”
7. Clause 7.2 indicates that 50% of the seats in post graduate
diploma courses in medical colleges of the State Government and
Municipal Corporations were reserved for in-service candidates of the
State Government who had served for at least three years in remote
and/or difficult areas. The clause also envisages that for in-service quota/
reservation, any change made by the government from time to time
would apply. In addition, it was specified that the weightage for in-service
candidates would be available in terms of Regulations (9)(IV) and (VII)
of the Post Graduate Medical Regulations 2000. Clause 7.10 of the same
brochure (issued on 21 September 2022) provided as follows:
“7.10 If the seats reserved for State In-service quota in the
particular Constitutional reserve category remain unfilled on
NIPUN TAWARI & ORS. v. THE STATE OF MAHARASHTRA &
ORS. [DR DHANANJAYA Y CHANDRACHUD, J.]
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account of unavailability of candidate(s) after inter-se as per rules
amongst In-service candidates, the remaining seat(s) shall be
included in the respective Constitutional reserve category and these
seats will be distributed to Non-in-service candidates using NEET-
PG 2022 merit list.”
8. The eligibility for in-service candidates was specified in clause
8.16 of the brochure, which is extracted below:
“8.16 Eligibility for In-Service Candidates:
8.16.1 Eligibility for in-Service candidates will be as per criteria
laid down by the Public Health Department of State of Maharashtra
for In-service Medical Officers. As per Public Health Department
Government Resolution No. MMO-2019/C.R.165/Service-3, dated
19th March 2019 and or any Government Resolution issued from
time to time (Annexure-U).
8.16.2 In–Service candidate desirous to claim In-Service quota
seat shall obtain No Objection Certificate from their establishment
for admission process.
8.16.3 In service quota candidate must have appeared for NEET-
PG 2022, and declared eligible by Competent Authority,
Government of India, New Delhi.”
9. Clause 8.17 of the brochure contains the following provision :
“8.17 Candidates for post-graduate medical courses shall be
selected strictly on the basis of their NEET-PG merit. However
as per clause 9 (IV) & (VII) of NMC/erstwhile MCIPG regulation
2000, in determining the merit of eligible In-Service candidates
under
Government/Public authority, weight-age in the marks may
be given by Public Health Department as an incentive at the rate
of upto 10% of marks obtained for each year of service in remote
and/or difficult areas maximum of 30% of marks obtained in
NEET-PG 2022. The remote and difficult areas shall be as notified
by Government of Maharashtra from time to time. The decision
in this regard taken by The Directorate, Public Health Department,
Government of Maharashtra will be final.”
10. Clause 8.17, inter alia, stipulated that while determining the
eligibility of in-service candidates, a weightage of marks would be
provided as an incentive at the rate of 10% of the marks obtained for
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each year of service in remote and/or difficult areas with a maximum of
30% marks out of the marks obtained in the NEET-PG 2022. The remote
and difficult areas were to be those as notified by the State Government
from time to time.
11. On 21 September 2022, online registration commenced for
admission to post graduate medical courses in the State of Maharashtra.
The registration window was to remain open between 21 and 26
September 2022. On 26 September 2022, the Government of
Maharashtra issued a Government Resolution providing for in-service
reservation to the extent of 20% seats in post graduate medical degree
courses for officers serving in government hospitals. The rationale for
the Government Resolution was explained in its foreword:
“At present, most of the seats of medical post graduate courses
have been converted into post graduate degrees. Therefore, it
has bene pointed out that the in-service medical officers are not
directly benefiting from the reservation for admissions to post
graduate courses. In-service medical officers are serving in
government hospitals and if they are reserved for post graduate
degrees, patient care will be available to the general public of the
state through the specialists available from among them. Taking
the said matter into consideration, the issue of revised order
regarding in-service quota for admission to Post Graduate Degree
and Post Graduate Diploma courses in Government/Municipal
Medical Colleges was under
consideration of the Government.”
12. The Government’s decision was in the following terms :
“1. From the academic year 2022-23, Government approval is
being given to reserve 20% seats for in-service candidates for
admission to Post Graduate Degree and Diploma courses in
Government/Municipal Medical Colleges in the State.
2. Marks to be obtained for admissions in in-service quotas of
post-graduate courses and details for Selection of In-service
Candidates for Quota Admissions (“Read” No. 2 and 3) mentioned
above in the Government decisions of the Department of Public
Health or issued from time to time through that Department. Action
will be taken as per the orders.
3. Government approval is being granted to reserve 20% of the
state quota seats for in-service candidates for admission to post
NIPUN TAWARI & ORS. v. THE STATE OF MAHARASHTRA &
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graduate and diploma courses in government/municipal medical
colleges in the state subject to the following conditions:
1) In addition to the said reservation quota, in-service candidates
seeking admission from the general category will not get any
additional marks other than the marks in the NEET examination.
2) In-service candidates after completion of post graduate course,
apart from the service to be rendered under Public Health
Department, they will also be required to render one year of social
responsibility service in Government Medical College.”
13. The seat matrix for the ensuing year was released by the
State government on 30 September 2022. The first round of counselling
commenced on 3 October 2022 and was followed by provisional
admissions between 4 and 8 October 2022.
14. The appellants instituted a writ petition before the High Court
of Judicature at Bombay. There was no challenge to the Government
Resolution dated 26 September 2022. The submission of the appellants
was that the resolution cannot be made applicable for admissions to post
graduate medical degree courses for the 50% state quota in Government
and Corporation run medical colleges for the current academic year i.e.,
Academic Year 2022-23. This is evident from clauses (a) and (b) of the
reliefs sought in paragraph 12 of the Writ Petition which are extracted
below :
“(a) hold and declare that the provisions of impugned Government
Resolution
dated 26th September 2022 cannot be made applicable
for the purposes of admission to post graduate medical degree
courses from the 50% State quota in any government or
corporation medical college from the current academic year 2022-
2023 and for this purpose issue appropriate writ and/or order.
(b) direct the Respondent Authorities to conduct the admission
process of post graduate medical degree courses in respect of
50% State Quota for the academic year 2022-2023 without
applying the 20% reservation in favour of the in-service candidates
as per the impugned Government Resolution dated 26th September
2022.”
15. The High Court dismissed the Writ Petition by its impugned
judgment dated 14 October 2022.
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16. We have heard Mr. Anand Grover, senior counsel appearing
on behalf of the appellants and Mr Siddharth Dharmadhikari, counsel
appearing on behalf of the State of Maharashtra. The Court has also
been assisted by Mr. Sanjay Hegde, senior counsel and Mr. Sudhanshu
Choudhari, counsel appearing on behalf of the intervening in-service
candidates who have been provisionally admitted following the first round
of counselling.
17. Principally, the challenge which has been addressed before
this Court by Mr. Anand Grover, senior counsel is two-fold. Firstly, it has
been submitted that the Government Resolution dated 26 September
2022, providing for a reservation of 20% for in-service candidates, was
issued after the admission process had commenced for Academic Year
2022-23, and would hence be inapplicable for that academic year. In this
context, reliance has been placed on a three-judge bench decision of this
Court in Dr Prerit Sharma v. Dr Bilu B S1 in support of the submission
that the underlying principles for admission cannot be altered once the
admission process has commenced. Secondly, it has been submitted that
the State Government while providing for in-service reservation has not
collected any data which is evident from the fact that out of 1416 seats
for post graduate medical degree courses in the State of Maharashtra,
282 seats were made available for the in-service quota but only 69 in-
service candidates appeared for the NEET-PG held in May 2022 out
of
which 52 have been considered to be eligible for being granted admission.
On this hypothesis, it has been submitted that it is evident that the
reservation of 20% is disproportionately high as a consequence of which
only 52 out of the 282 seats have been filled up in the first round.
18. On the other hand, it has been submitted by Mr Siddharth
Dharmadhikari, counsel appearing on behalf of the State of Maharashtra
that :
(i)
There was no change in the rules governing admission
midstream since the brochure released by the State
Government made it abundantly clear that the reservation
for in-service candidates would abide by such resolutions
as would be issued by the State Government from time to
time;
(ii)
This must be considered in the backdrop of the fact that in-
service reservation in post-graduate degree courses in
NIPUN TAWARI & ORS. v. THE STATE OF MAHARASHTRA &
ORS. [DR DHANANJAYA Y CHANDRACHUD, J.]
1 (2022) 2 SCC 751
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government medical colleges was provided in the State of
Maharashtra prior to 2017 but was discontinued as a result
of the judgment of a three judge bench of this Court in
State of Uttar Pradesh v. Dinesh Singh Chauhan.2
However, the reservation for in-service candidates was
restored after the subsequent decision of the Constitution
Bench in Tamil Nadu Medical Officers Association v.
Union of India;3 and
(iii)
There has been no change of policy midstream and the
State Government has aligned the in-service reservation
for post graduate degree courses, as provided earlier, save
and except for reducing the quantum of reservation from
30% to 20%.
19. Mr. Sanjay Hegde, senior counsel and Mr. Sudhanshu
Choudhari, counsel appearing on behalf of the intervenors have relied
on the fact that admissions have already been granted in the first round
of counselling and the students who were admitted have not been
impleaded as parties to these proceedings. Moreover, it has been
submitted that there was no challenge to the legality and validity of the
Government Resolution dated 26 September 2022. Hence, the High
Court, it is urged, was justified in holding that in the absence of a challenge
to the validity of the Government Resolution, it was not open to it to read
down the provision so as to exclude its applicability for the current
academic year.
20. While considering the rival submissions, it must be noted at
the outset that on
16 August 2016, a three-judge bench of this Court held
in Dinesh Singh Chauhan (supra) that reservation for in-service
candidates to post graduate medical degree courses was violative of the
provisions of Regulation 9 of the Regulations framed by the Medical
Council of India4 in 2000.
21. The correctness of the decision of the three-judge bench in
Dinesh Singh Chauhan became the subject matter of a reference to a
Constitution Bench. The judgment of the Constitution Bench, reported
as Tamil Nadu Medical Officers Association (supra), was rendered
on 31 August 2020. The Constitution Bench, inter alia, held that :
2 (2016) 9 SCC 749
3 (2021) 6 SCC 568
4 “MCI”
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(i)
Regulation 9 of the MCI Regulations 2000 does not make
provisions for or affect the competence of the States to
make reservation by providing a separate source of entry
for in-service candidates seeking admission to post graduate
degree courses; and
(ii)
Each State was, in terms of its constitutional obligation to
provide better health care facilities to its citizens, entitled to
prescribe an in-service quota for the purpose of upgrading
the qualifications of existing in-service doctors.
22. The conclusions which have been formulated in paragraphs
23.5 and 23.8 of the decision of the Constitution Bench in Tamil Nadu
Medical Officers Association (supra), delivered by Justice M.R. Shah
are extracted below :-
“23.5) That Regulation 9 of MCI Regulations, 2000 does not deal
with and/or make provisions for reservation and/or affect the
legislative competence and authority of the concerned States to
make reservation and/or make special provision like the provision
providing for a separate source of entry for in-service candidates
seeking admission to postgraduate degree courses and therefore
the States concerned to be within their authority and/or legislative
competence to provide for a separate source of entry for in-service
candidates seeking admission to postgraduate degree courses in
exercise of powers under List III Entry 25;
…
23.8) That the State has the legislative competence and/or authority
to provide for a separate source of entry for in-service
candidates
seeking admission to postgraduate degree/diploma courses, in
exercise of powers under List III Entry 25. However, it is observed
that the policy must provide that subsequent to obtaining the
postgraduate degree by the in-service doctors concerned obtaining
entry in degree courses through such separate channel serve the
State in the rural, tribal and hilly areas at least for five years after
obtaining the degree/diploma and for that they will execute bonds
for such sum the respective States may consider fit and proper;”
23. In the State of Maharashtra, there was an in-service quota
for post graduate degree courses to the extent of 30% of the total seats.
The validity of the in-service reservation in post graduate degree courses
NIPUN TAWARI & ORS. v. THE STATE OF MAHARASHTRA &
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came under a cloud in view of the judgment of the three-judge bench in
Dinesh Singh Chauhan (supra). However, the reservation for in-service
candidates in diploma courses continued to exist since a specific provision
in that regard was contained in Regulation 9(VII) of the MCI Regulations
2000.
24. The issue as to whether it was open to the State Government
to provide in-service reservation in post graduate medical degree courses
to doctors employed in government hospitals was authoritatively settled
in the judgment of the Constitution Bench in Tamil Nadu Medical
Officers Association (supra), following which the State of Maharashtra
has decided to introduce an in-service reservation by its Government
Resolution dated 26 September 2022.
25. The principal issue before us is whether the Government
Resolution would have to be held not to apply to the current academic
year on the ground which is urged by the appellants, namely, that there is
a change in the rules governing admission after the admissions process
has commenced.
26. Before considering the relevant clauses of the brochure
governing admissions, it would be necessary to advert to the decision of
a three-judge bench of this Court in Dr. Prerit Sharma (supra) upon
which the appellants have placed reliance. In that case, the issue pertained
to reservation of 50% seats by the State of Tamil Nadu for in-service
candidates in super-speciality courses offered by
government medical
colleges. The information bulletin for the NEET-SS 2020 was issued on
3 August 2020. The examinations were scheduled for 15 September
2020 and the results were declared on 25 September, 2020. The bulletin
governing the admission process clearly specified that there shall be no
reservation of seats for super-speciality DM/MCH courses. This is
emphasised in the following extract of the decision of this Court:
“15. … It was made clear in Point 5.16 of the bulletin that there
shall be no reservations of seats for superspeciality DM/MCH
courses.”
The Court noted that the counselling for admissions to super-
speciality medical courses was postponed at which stage, the Government
of Tamil Nadu issued a resolution on 7 November 2020 reserving 50%
of super-speciality seats in government medical colleges to in-service
candidates. It was in this backdrop that the Court observed:
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“18. The process for admissions to superspeciality medical courses
started on 3-8-2020 and it was made clear to all the competing
candidates that there shall be no reservation to superspeciality
medical courses. The Government Order issued by the State of
Tamil Nadu on 7-11-2020 reserving 50% seats for in-service
doctors would be detrimental to the interests of the meritorious
doctors as 50% of the available seats in the State of Tamil Nadu
in superspeciality medical courses will not be available to them.”
Apart from this, the Court noted that admittedly no reservation
for in-service doctors was implemented since 2016 and since the
admissions process was “at the final stages”, reservation for in-service
doctors could not be permitted for that year.
27. The facts pertaining to the reservation for in-service doctors
in the State of Maharashtra for post graduate medical courses would
now have to be noticed.
28. Clause 7.2 of the brochure issued by the State Government
provides that 50% of seats in post graduate diploma courses would be
reserved for in-service candidates. Clause 7.2 also provides that “for in-
service quota reservation, any change made by Government from time
to time will be applicable”. An additional weightage for in-service
candidates was also prescribed by Clause 7.2 in terms of clauses 9(IV)
and (VII) of the MCI Regulations. Clause 8.16.1 prescribes that the
eligibility for in-service candidates would be in terms of the Government
Resolution dated 19 March 2019 or any other Government Resolution
issued from time to time. Incentive marks of up to 10% marks for each
year of service in remote and/or difficult areas subject to a maximum of
30% of the marks obtained in the NEET-PG 2022 was prescribed in
Clause 8.17 of the brochure.
29. Clause 3 of the Government Resolution dated 26 September
2022 which prescribes a reservation of 20% of the State quota seats for
in-service candidates also makes it clear that an in-service candidate
seeking admission to the general category will not get any additional
marks other than the marks obtained in the NEET Examination. In other
words, an in-service candidate who opts for a seat in the general category
would not be entitled to any weightage of marks. The weightage of
marks is, therefore, prescribed in relation to those candidates who aspire
for a seat in the 20% quota which is set apart for in-service candidates.
NIPUN TAWARI & ORS. v. THE STATE OF MAHARASHTRA &
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30. It is difficult to accept the submission of the appellants that
the Government Resolution dated 26 September 2022 ought not to apply
for the current academic year on the ground that it has altered the ‘rules
of the game’ midstream. The High Court has principally rejected the
submission of the appellants on the ground that there was no challenge
to the validity of the Government Resolution dated 26 September 2022
in which event, it is not permissible for the court to read it down so as to
exclude its applicability for the current academic year.
31. Apart from the above reasoning of the High Court, it is evident
that unlike the situation which resulted in the decision of this Court in
Dr. Prerit Sharma (supra), there was no specific prohibition in the
brochure in the matter of reservation for in-service candidates in the
present case. On the contrary, Clause 7.2 of the brochure issued by the
State of Maharashtra clearly specified that in quota reservations would
abide by Government Resolutions as may be issued from time to time.
Following the decision of the Constitution Bench which has been noted
above, a writ petition was filed before the High Court of Judicature at
Bombay5 seeking reservation for in-service candidates. In an order dated
24 January 2022, the High Court noted that there was a difference of
perspective between the Public Health Department and Medical
Education Department of the state. In this
backdrop, the Division Bench,
while noting the view which was taken by the Constitution Bench of this
Court, adjourned the proceedings to 1 February 2022. Evidently, the State
Government was in the process of taking a final decision which was
ultimately reflected in the Government Resolution dated 26 September
2022. Thus, the background of the facts indicated in the earlier part of
the judgment would show that there was a reservation for in-service
candidates in post graduate degree courses in the State of Maharashtra
until the situation came to be altered as a result of the decision of the
three-judge bench in Dinesh Singh Chauhan (supra). The validity of
reservation for in-service candidates in degree courses has since been
restored following the decision of the Constitution Bench in Tamil Nadu
Medical Officers Association (supra). The provisions in the brochure
that in-service quota reservations would abide by any change made by
government from time to time must be understood in the context of the
above facts.
5 Civil Writ Petition No. 7855 of 2021 Dr Suryakant Tejrao Lodhe v. State of Maharashtra
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32. The provisions of the brochure specifically placed students on
notice that in-service reservations would abide by such resolutions as
may be issued by the government from time to time. The issue before
us, therefore, has to be construed in the specific background of the facts
as they pertained to reservation in the State of Maharashtra for in-service
candidates in post graduate degree courses.
33. In Neil Aurelio Nunes (OBC Reservation) v. Union of
India,6 this Court was faced with a similar set of facts. In that case, the
registration for the examination closed on 18 April 2021. A notice
providing reservation for OBC and EWS candidates was issued on 29
July 2021. This notice was challenged on the ground that the rules of the
examination could only be changed before the last date of registration
for the examination. A two-judge bench of this Court (of which one of
us, Justice DY Chandrachud, was a part) ruled that the impugned notice
did not alter the rules of the game after the game had begun because the
Information Bulletin in that case specified that the details of the applicable
reservation would be notified by the counselling authority through a
separate handbook. This being the case, the candidates who wished to
register for the examination were aware that details regarding the seat
matrix/reservation would be made available at a later stage. Similarly, in
the present case, Clause 7.2 of the brochure issued by the State of
Maharashtra clearly
specifies that the reservation policy for in-service
candidates is subject to any changes made by the government from time
to time. Hence, the brochure envisages that there may be a change in
the reservation policy for in-service candidates and accounts for the
same. The rules of the examination have remained constant and the
Government Resolution dated 26 September 2022 did not change the
rules of the game after the admission process had commenced.
34. The appellants have also relied upon the decisions of this Court
in A.P. Public Service Commission v. B. Swapna7 and Maharashtra
SRTC v. Rajendra Bhimrao Mandve8 for the proposition that the
prescribed selection criteria cannot be changed once the selection process
has started. However, for the reasons discussed above, we find that the
selection criteria were not changed after the selection process
commenced. To the contrary, the Government Resolution dated 26
NIPUN TAWARI & ORS. v. THE STATE OF MAHARASHTRA &
ORS. [DR DHANANJAYA Y CHANDRACHUD, J.]
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7 (2005) 4 SCC 154
8 (2001) 10 SCC 51
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September 2022 is in consonance with the brochure issued by the
Government of Maharashtra. Hence, neither of the decisions cited by
the appellants is of any assistance to their case.
35. The facts which have been set out in the judgment of the High
Court and which have been placed on the record of this Court by the
interveners indicate that out of 1416 post graduate medical degree seats
in the State of Maharashtra, 282 have been reserved for in-service
candidates. It would appear that 268 candidates obtained No Objection
Certificates from their departments to apply for the in-service reservation.
In the first round of counselling, 69 students were held to be eligible,
having received marks above the cut off. 52 candidates have been granted
admission in a post graduate medical program.
36. The Government of India, through the Ministry of Health and
Family Welfare, has issued a communication on 17 October 2022 providing
for a reduction in the cut-off marks in the NEET-PG 2022 by 25 percentile
across all categories. Following the above decision, it is likely that
additional candidates would become eligible to participate in the
subsequent rounds of counselling. Moreover, from a reading of Clause
7.10 of the brochure, it is apparent that if any seats which have been
provided for the in-service quota remain unfilled, they shall be distributed
to the ‘non-in-service’ category of candidates using the NEET-PG 2022
merit
list.
37. For the above reasons, we are of the considered view that the
judgment of the High Court does not call for interference, though for the
reasons which have been indicated above.
38. The appeal is accordingly dismissed.
39. Pending applications, if any, stand disposed of.
Nidhi Jain
Appeal dismissed.
(Assisted by : Shashwat Jain, LCRA)