DR. ASTHA GOEL AND ORS. versus THE MEDICAL COUNSELLING COMMITTEE & ORS.
[2022] 7 S.C.R. 1078, Supreme Court of India, 2022
Outcome: Dismissed (Dismissed)
Segment: Ratio
A
B
C
D
E
F
G
H
1078
SUPREME COURT REPORTS
[2022] 7 S.C.R.
   [2022] 7 S.C.R. 1078
1078
DR. ASTHA GOEL AND ORS.
v.
THE MEDICAL COUNSELLING COMMITTEE & ORS.
(Writ Petition (C) No. 409 of 2022)
JUNE 10, 2022
[M. R. SHAH AND ANIRUDDHA BOSE, JJ.]
Education/Educational Institutions: Medical admission –
NEET-PG-2022 –Conduct of Special Stray Round of counselling
with respect to vacant seats – Entitlement to – Modified scheme of
counselling for Academic Year 2021-2022 whereby, four rounds of
counselling undertaken for All India Quota seats as well as States’
Quotas each-in all eight rounds of counselling – After completion,
out of 40,000 seats, 1456 seats remained vacant wherein more than
1100 seats are non-clinical seats and the remaining are the clinical
seats, all with respect to the private institutions – Petitioners claiming
admission on the remaining vacant seats– Direction sought to the
respondents to conduct a Special Stray Round of counselling –Held:
Students cannot seek admission on those seats remaining vacant
after approximately one year of academic session and after eight
or nine rounds of counselling–When the Medical Counselling
Committee and the Union of India have to adhere to the time schedule
for completing the admission process and ever after conducting
eight to nine rounds of counselling, still some seats have remained
vacant, a conscious decision taken by the Union Government/the
Medical Counselling Committee, not to conduct a further Special
Stray Round of
counselling, cannot said to be arbitrary– Decision
of, not to have Special Stray Round of counselling is in the interest
of Medical Education and Public Health – There cannot be any
compromise with the merits and/or quality of Medical Education,
which may ultimately affect the Public Health– Process of admission
and that too in the medical education cannot be endless– Time
schedule has to be strictly adhered to – Furthermore, after closure
of the last round of counselling, the entire software mechanism has
been closed and the security deposit is refunded to the eligible
candidates, if one additional Special Stray Round of counselling is
conducted now, it may affect the admission process for NEET-PG-
A
B
C
D
E
F
G
H
1079
2022 – In view thereof, the petitioners not entitled to the relief of
conducting a Special Stray Round of counselling for filling up the
remaining vacant seats of NEET-PG-2021.
Education Promotion Society for India and Anr. v. Union
of India and Ors.(2019) 7 SCC 38 : [2019] 8 SCR 794;
Supreet Batra and Ors. v. Union of India and Ors.
(2003) 3 SCC 370 : [2003] 1 SCR 586 – referred to.
Case Law Reference
[2019] 8 SCR 794
referred to
Para 8.2
[2003] 1 SCR 586
referred to
Para 8.3
CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No.409 of
2022.
(Under Article 32 Of The Constitution Of India)
With
Writ Petition (C) Nos.393, 10395 And 10539 of 2022.
Ms. Rachana Shrivastava, A. D. N. Rao, Sr. Advs., Kunal Cheema,
Ms. Aditi Deshpande Parkhi, Milind Kumar, Dr. Charu Mathur, Ms.
Tanvi, Sanjay Kumar Dubey, Avijit Mani Tripathi, Annam Venkatesh, D.
Shiva Shankar, Advs. for the Appellants.
Balbir Singh, ASG, Shyam Gopal, Samarvir Singh, Naman Tandon,
K. Gurumurthy, Prahlad Singh, G. S. Makker, Gaurav Sharma, Prateek
Bhatia, Dhawal Mohan, Kirtiman Singh, Ms. Manmeet Kaur Sareen,
Advs. for the Respondents.
The Order of the Court was passed by
M. R. SHAH, J.
1. As common question of law and facts arise in this group of writ
petitions/special leave petitions, they are being disposed of by this common
order.
2. For the sake of convenience, Writ Petition (C) No.409 of 2022-
Dr. Astha Goel and Ors. Vs. The Medical Counselling Committee &
Ors. is treated as the lead matter.
By way of this writ petition being Writ
Petition No. 409 of 2022 under Article 32 of the Constitution of India,
the seven petitioners have prayed for the following reliefs:-
DR. ASTHA GOEL AND ORS. v. THE MEDICAL
COUNSELLING COMMITTEE & ORS.
A
B
C
D
E
F
G
H
1080
SUPREME COURT REPORTS
[2022] 7 S.C.R.
“a)
Issue an Appropriate Writ, Order or Direction, in the nature
of a Writ of Mandamus, under Article 32 of the Constitution
to direct Respondent No. 1 to provide the exact number of
vacant seats after the conduct of stray vacancy round of
AIQ;
b)
Issue an Appropriate Writ, Order or Direction, in the nature
of a Writ of Mandamus, under Article 32 of the Constitution
to direct Respondent No. 1 to conduct a Special Stray Round
of counselling to allow the candidates to participate for the
vacant seats which are available after the conduct of stray
vacancy round of AIQ;
xxxxxxx”
3. In Writ Petition (C) No. 393 of 2022, one additional prayer is
made to issue an appropriate writ, direction or order directing the
respondent Nos. 1 and 2 –The Medical Consulting Committee and the
Union of India to revert the Medical P.G. seats remaining vacant after
the AIQ stray vacancy round as regards the admissions conducted
pursuant to NEET-PG-2021 examination to the State Quotas, for being
allotted through State Mop-Up Rounds.
4. The petitioners of Special Leave Petition (C) No. 10395 of
2022 and Special Leave Petition (C) No. 10539 of 2022 approached the
respective High Courts for the very reliefs, which are now sought in the
aforesaid writ petitions, namely directing the respondents to conduct a
Special Stray Round of counselling so as to allow them to participate for
the vacant seats, which are available after the conduct of stray
vacancy
round of AIQ. By the impugned orders, the respective High Courts have
dismissed the writ petitions, hence the original writ petitioners have
preferred the present special leave petitions.
5. The dispute is with respect to the admissions for NEET-PG-
2021. Around 40,000 seats were available for NEET-PG examination,
which included the clinical as well as non-clinical seats. 92,000 candidates/
doctors were initially eligible for examination for the said seats. However,
subsequently, the percentage was lowered by communication dated
12.05.2022 and another 25,000 candidates became eligible.
5.1 The NEET-PG examination was conducted on 11.09.2021.
The result was declared on 28.09.2021. As per the earlier counselling
scheme, there were two rounds of counselling for All India Seats as well
A
B
C
D
E
F
G
H
1081
as State Quotas seats respectively. However, as per the modified
counselling scheme, counselling is to be carried in four rounds and no
seats were to be reverted to States. These four rounds were AIQ Round
1, AIQ Round 2, AIQ Mop-up Round and AIQ Stray Vacancy Round.
5.2 That for NEET-PG-2021, Round 1 was held on 12.01.2022,
Round 2 was held on 05.02.2022, Mop-Up Round was held on 14.04.2022
and final Stray Round started on 28.04.2022 and ended on 07.05.2022.
At the end of the four rounds of counselling, each for All India Quota
and State Quotas (in all eight rounds of counselling) and thereafter one
another round of counselling was conducted, and still approximately 1456
seats remain vacant.
5.3 The respective petitioners, who earlier participated in all the
counsellings and could not get the admissions have now approached this
Court by way of present writ petitions/special leave petitions praying for
Special Stray Round of counselling with respect to the remaining 1456
seats remained vacant and to allow them to participate for the vacant
seats, which are available after the conduct of the Stray vacancy round
of AIQ.
6. Ms. Rachna Shrivastava, learned Senior Advocate has appeared
on behalf of the writ petitioners of Writ Petition (C) No. 409 of 2022;
Shri A.D.N. Rao, learned Senior Advocate has appeared on behalf of
the petitioner in Special Leave Petition (C) No. 10395 of 2022; Shri
Avijit Mani Tripathi, learned counsel has appeared on behalf of the
petitioner in Special Leave Petition (C) No. 10539 of 2022 and Shri
Kunal Cheema, learned counsel has appeared on behalf of the writ
petitioner in Writ Petition (C) No.393 of 2022. Shri Balbir Singh, learned
Additional Solicitor General has appeared on behalf of the Union of
India and Shri Gaurav Sharma, learned counsel has appeared on behalf
of the Medical Counselling Committee as well as the National Board of
Examinations.
7. Learned Senior Advocates/counsel appearing on behalf of the
respective petitioners have made following submissions in support of
their prayer to direct the respondents to conduct a Special Stray Round
of counselling with respect to the seats which have remained vacant:-
(i)
Total 1456 seats have remained vacant for NEET-PG-2021,
wastage of 1456 seats still hamper the interest of both
colleges and the candidates;
DR. ASTHA GOEL AND ORS. v. THE MEDICAL
COUNSELLING COMMITTEE & ORS. [M. R. SHAH, J.]
A
B
C
D
E
F
G
H
1082
SUPREME COURT REPORTS
[2022] 7 S.C.R.
(ii)
The respective petitioners – candidates are ready to get
admission on any of the seats remained vacant;
(iii)
Due to abrupt addition of additional seats in NEET-PG-
2021, an additional round of counselling for 146 seats was
conducted pursuant to the order passed by this Court. Apart
from this, the Mop-Up round was cancelled and was
directed to be reconducted. Therefore, the point of four
counselling cannot be brought when due to severe glitches
additional rounds were already conducted;
(iv)
Out of 1456 seats remaining vacant, there are many seats,
which are clinical seats also. Therefore, it is not correct to
say that the seats, which have remained vacant are of
Paramedical courses;
(v)
The seats which have remained vacant have remained
vacant due to the non-joining, resignation and the candidates
not reported. It is submitted that therefore, it was the duty
cast upon the respondents to fill up the posts remained vacant
due to the aforesaid grounds from and amongst the remaining
candidates;
(vi)
It is the duty of the Medical Counselling Committee to have
conducted an additional round keeping in view the large
number of seats (1456) remaining vacant;
(vii)
Closing of the software before filling of those seats itself is
not justifiable. Even if the software is closed, looking at the
gravity and urgency, a mechanism can be developed to fill
in the vacant seats;
(viii) That the submission on behalf of the Medical
Counselling
Committee and the Union of India that the respective
candidates have already been refunded the amount cannot
be a ground not to conduct an additional round of counselling;
(ix)
The candidates for NEET-PG-2021 and 2022 are different.
Many candidates, who participated in the counselling for
NEET-PG-2021 did not even register for NEET-PG-2022
with a hope that they will get a seat in the counselling.
Registration for NEET-PG-2022 has already been closed
on 25.03.2022, giving no room to the candidates for NEET-
PG-2021 to appear for the NEET-PG-2022;
A
B
C
D
E
F
G
H
1083
(x)
The candidates cannot be replaced for NEET-PG-2021 and
NEET-PG-2022, 1456 seats can only be open for a merit-
based competition for NEET-PG-2021;
(xi)
If the candidates like the petitioners are given the admissions
on the seats remaining vacant now, it may not affect their
education. Even the classes of NEET-PG-2021 started even
much before the first counselling batch started. That
thereafter and after the courses started, there are three
Mop-Up Rounds conducted and the students are given
admissions and the last admission was given on 07.05.2022.
The students, who are given admissions now will be able to
complete their full studies.
Making above submissions, it is urged and prayed to direct the
respondents to conduct a Special Stray Round of counselling as a one-
time measure and as a special case.
8. Present petitions/special leave petitions are vehemently opposed
by Shri Balbir Singh, learned ASG appearing on behalf of the Union of
India and Shri Gaurav Sharma, learned counsel appearing on behalf of
the Medical Counselling Committee. A counter is filed on behalf of the
respondent Nos. 1 and 3 – Union of India/ Director General of Health
Services.
8.1 It is vehemently submitted by Shri Balbir Singh, learned ASG
that in the present case, the dispute is with respect to the NEET-PG-
2021 seats. It is submitted that in the present case, four rounds of
counselling each for All India Quota and State’s Quotas have been carried
out and out of 40,000 seats
only 1456 seats have remained vacant after
in all nine rounds of counselling. It is submitted that out of 1456 seats
remaining vacant, approximately, 1100 seats are with respect to non-
clinical courses and the remaining seats are with respect to the private
colleges and with respect to the clinical courses. It is submitted that all
those seats have remained vacant, which usually remain vacant every
year as they are notakers and/or they can be said to be rejected seats. It
is submitted that all those seats remain vacant every year and, in many
cases, they are not opted by the concerned candidate as nobody like to
opt for non-clinical courses and even with respect to some of the clinical
courses, as there is a high fee in the private colleges, they are notakers
and therefore, some of the seats are remaining vacant every year. It is
submitted that therefore even after one additional round of counselling is
DR. ASTHA GOEL AND ORS. v. THE MEDICAL
COUNSELLING COMMITTEE & ORS. [M. R. SHAH, J.]
A
B
C
D
E
F
G
H
1084
SUPREME COURT REPORTS
[2022] 7 S.C.R.
carried out as requested by the petitioners, in that case also the seats are
bound to remain vacant. It is submitted that there cannot be endless
exercise of conducting counseling one after another till all the seats are
filled in. It is submitted that after the nine rounds of counselling when
some of the seats have remained vacant and considering the fact that
the PG courses (clinical) is three-years course, out of which, for whatever
reason, more than one year had gone and there cannot be any
compromise so far as the Medical Education is concerned and considering
the fact that the admission process for NEET-PG-2022 has already begun
and the counselling for NEET-PG-2022 is to begin/start in July, 2022, a
conscious decision has been taken not to conduct one another Special
Stray Round of counselling.
8.2 It is further submitted on behalf of the Union of India and the
Medical Counselling Committee that the last round of counselling ended
on 07.05.2022. That thereafter, the entire software mechanism has been
closed and the security deposit has also been refunded to the eligible
candidates. It is submitted that a significant proportion of seats, which
remain vacant are in non-clinical courses and these are no taker seats,
which seats generally remain vacant. It is submitted that every year,
some number of seats remain vacant. It is submitted that the identical
question came to be considered by this Court in the case of
Education
Promotion Society for India and Anr. Vs. Union of India and Ors.,
(2019) 7 SCC 38. It is submitted that before this Hon’ble Court, the
petitioners prayed for general extension of time and prayed for additional
Mop-Up Round of counselling on the ground that a large number of
seats for PG courses were lying vacant. It is submitted that in the said
decision after taking note of the fact that every year, large number of
non-clinical seats remain vacant because many graduate doctors do not
want to do postgraduation in non-clinical subjects, it is observed that
merely because the seats are lying vacant is not a ground to grant
extension of time and grant further opportunity to fill up vacant seats. It
is submitted that in the aforesaid decision, it is observed that the schedule
must be followed and if the violation of schedule is permitted and
extension is granted, it will be opening a pandora’s box and the whole
purpose of fixing a time schedule and laying down a regime which strictly
adheres to the time schedule will be defeated.
8.3 Shri Gaurav Sharma, learned counsel appearing on behalf of
the Medical Counselling Committee and the National Board of
Examinations has also relied upon the earlier decision of this Court in the
A
B
C
D
E
F
G
H
1085
case of Supreet Batra and Ors. Vs. Union of India and Ors., (2003)
3 SCC 370 in support of his submission that even if some seats remained
vacant, the students cannot be admitted mid-term.
8.4 Making above submission, it is prayed to dismiss the present
writ petitions/special leave petitions.
9. Heard the learned counsel appearing for the respective parties
at length.
10. At the outset, it is required to be noted that in the present case,
the dispute is with respect to the NEET-PG-2021 and the time schedule
for the approved counselling has been fixed pursuant to the direction
issued by this Court and/or approved by this Court. Ordinarily, the first
round of counselling in PG courses begins in the month of March of
every academic year and subsequently the academic session begins from
the month of May of every academic year. However, NEET-PG-2021
examination was delayed due to the third wave of COVID-19 pandemic
and various litigations across the nation implementing the 27% OBC
reservation in AIQ seats.
10.1 At this stage, it is required to be noted that as per the earlier
counselling policy, only two rounds of counselling were being held for All
India Quota seats and State Quotas. The modified scheme of counselling
for Academic Year 2021-2022 and onwards was submitted before this
Court in Special Leave Petition (C) No.10487 of 2021 and this Court
approved the same. As per the modified scheme of counselling, this time
four rounds of counselling have been
undertaken for All India Quota
seats as well as States’ Quotas each. That thereafter one another round
of counselling was conducted pursuant to the subsequent order passed
by this Court, as approximately 146 seats were added. The NEET-PG-
2021 counselling commenced on 12.01.2022 and after completion of the
four rounds of counselling for All India Quota seats and State Quotas (in
all eight rounds of counselling), out of 40,000 seats, 1456 seats have
remained vacant. It appears that out of 1456 seats approximately more
than 1100 seats are with respect to the non-clinical courses and the
remaining are with respect to the clinical courses and all the seats are
with respect to the private institutions. The respective petitioners are
claiming admission on the remaining vacant seats and have prayed to
direct the respondents to conduct a Special Stray Round of counselling.
The main submission on behalf of the petitioners, as noted hereinabove,
DR. ASTHA GOEL AND ORS. v. THE MEDICAL
COUNSELLING COMMITTEE & ORS. [M. R. SHAH, J.]
A
B
C
D
E
F
G
H
1086
SUPREME COURT REPORTS
[2022] 7 S.C.R.
is that as large number of seats have remained vacant, the same be
filled in by conducting additional/Special Stray Round of counselling for
the seats remaining vacant, which are mostly non-clinical courses, which
remained even after eight or nine rounds of counselling. The students
cannot still pray for admission on those seats remaining vacant after
approximately one year of academic session and remaining vacant after
eight or nine rounds of counselling.
10.2 At this stage, the decisions of this Court in the case of Supreet
Batra and Ors. (supra) and Education Promotion Society for India
and Anr. (supra) are required to be referred to.
In the case of Supreet Batra and Ors.(supra), it is observed
and held that even if some seats remain vacant, the students cannot be
admitted mid-term. In paragraph 7, it is observed and held as under:-
“7. When a detailed scheme has been framed through orders of
this Court and the manner in which it has to be worked out is also
indicated therein, we do not think that if in a particular year there
is any shortfall or a certain number of seats are not filled up, the
same should be done by adopting one more round of counselling
because there is no scope for the third round of counselling under
the Scheme. It would not be advisable to go on altering the Scheme
as and when seats are vacant. What is to be borne in mind is that
broad equality will have to be achieved and not that it should
result
in any mathematical exactitude. Out of about 1600 seats, if 200
seats are not filled up for various reasons and such not-filled-up
seats were much less in the earlier years, we do not think it should
result in the third round of counselling. If that process is to be
adopted then there will be again vacancies and further filling up
of the seats falling vacant will have to be undertaken. In that
process, it will become endless until all the seats under the all-
India quota are filled up. That is not the object of the Scheme
formulated by this Court. The object was to achieve a broad-
based equality as indicated by us at the outset and we do not think
that any steps have to be taken for altering the Scheme. We have
taken identical view in the decision in Neelu Arora v. Union of
India [(2003) 3 SCC 366] and connected matters disposed of on
24-1-2003. Moreover, this Court in Medical Council of
India v. Madhu Singh [(2002) 7 SCC 258] has taken the view
that there is no scope for admitting students midstream as that
A
B
C
D
E
F
G
H
1087
would be against the very spirit of statutes governing medical
education. Even if seats are unfilled that cannot be a ground for
making mid-session admissions and there cannot be telescoping
of unfilled seats of one year with permitted seats of the subsequent
year. If these aspects are borne in mind, we do not think any
reliefs as sought for by the petitioners can be granted under these
petitions. These writ petitions shall stand dismissed.”
10.3 In the case of Education Promotion Society for India
and Anr. (supra), the writ petitioners like the petitioners in the present
case prayed for extension of time schedule and prayed for the additional
counselling. This Court negated the same. This Court also took the note
of the fact that every year large number of non-clinical seats remain
vacant because many graduate doctors do not want to do postgraduation
in non-clinical subjects. Thereafter, it is observed and held that merely
because the seats are lying vacant, is not a ground to grant extension of
time and grant further opportunity to fill up vacant seats. It is observed
that the schedule must be followed. While holding so, it is observed in
paragraph 6 as under:-
“6. In this case the petitioners want a general extension of time
not on account of any particular difficulty faced by any individual
college or university but generally on the ground that a large
number of seats for the PG courses are lying vacant. It is stated
that more than 1000 seats are
lying vacant. In the affidavit filed
by the UoI it is mentioned that as far as deemed universities are
concerned there are 603 seats lying vacant. However, it is important
to note that out of 603 seats lying vacant only 31 are in clinical
subjects and the vast majority (572) that is almost 95% of the
seats are lying vacant in non-clinical subjects. There is no material
on record to show as to what is the situation with regard to the
remaining 400-500 seats. This Court however can take judicial
notice of the fact that every year large number of non-clinical
seats remain vacant because many graduate doctors do not want
to do postgraduation in non-clinical subjects. Merely because the
seats are lying vacant, in our view, is not a ground to grant extension
of time and grant further opportunity to fill up vacant seats. The
schedule must be followed. If we permit violation of schedule and
grant extension, we shall be opening a pandora’s box and the
whole purpose of fixing a time schedule and laying down a regime
which strictly adheres to time schedule will be defeated.”
DR. ASTHA GOEL AND ORS. v. THE MEDICAL
COUNSELLING COMMITTEE & ORS. [M. R. SHAH, J.]
A
B
C
D
E
F
G
H
1088
SUPREME COURT REPORTS
[2022] 7 S.C.R.
10.4 Applying the law laid down by this Court in the aforesaid two
decisions to the facts of the case on hand and when the Medical
Counselling Committee and the Union of India have to adhere to the
time schedule for completing the admission process and when the current
admission of NEET-PG-2021 is already behind time schedule and ever
after conducting eight to nine rounds of counselling, still some seats,
which are mainly non-clinical courses seats have remained vacant and
thereafter when a conscious decision is taken by the Union Government/
the Medical Counselling Committee, not to conduct a further Special
Stray Round of counselling, it cannot be said that the same is arbitrary.
The decision of the Union Government and the Medical Counselling
Committee not to have Special Stray Round of counselling is in the interest
of Medical Education and Public Health. There cannot be any
compromise with the merits and/or quality of Medical Education, which
may ultimately affect the Public Health.
10.5 The process of admission and that too in the medical education
cannot be endless. It must end at a particular point of time. The time
schedule has to be adhered to, otherwise, ultimately, it may affect the
medical education and the public health.
10.6 Apart from the fact that after closure of the last round of
counselling on 07.05.2022, the entire software mechanism has been
closed and the security deposit is refunded to the
eligible candidates, it is
to be noted that the admission process for NEET-PG-2022 has already
begun, the results for the NEET-PG-2022 has been announced on
01.06.2022 and as per the time schedule, the counselling process is going
to start in July, 2022. Therefore, if one additional Special Stray Round of
counselling is conducted now, as prayed, in that case, it may affect the
admission process for NEET-PG-2022.
10.7 At the cost of repetition, it is observed and held that even
after eight to nine rounds of counselling, out of 40,000 seats, 1456 seats
have remained vacant, out of which approximately, more than 1100 seats
are non-clinical seats, which every year remain vacant, of which the
judicial notice has been taken by this Court in the case of Education
Promotion Society for India and Anr. (supra)
11. In view of the above and for the reasons stated above, the
petitioners are not entitled to any relief of writ of Mandamus directing
the respondents to conduct a Special Stray Round of counselling for
A
B
C
D
E
F
G
H
1089
filling up the remaining vacant seats of NEET-PG-2021. Granting of
such relief now may affect the medical education and ultimately the
public health as observed hereinabove.
12. Under the circumstances, both these writ petitions and the
special leave petitions deserve to be dismissed and are accordingly
dismissed. However, in the facts and circumstances of the case, there
shall be no order as to costs.
Nidhi Jain
Petitions dismissed.
DR. ASTHA GOEL AND ORS. v. THE MEDICAL
COUNSELLING COMMITTEE & ORS. [M. R. SHAH, J.]