NILAY GUPTA versus  CHAIRMAN NEET PG MEDICAL AND DENTAL ADMISSION/ COUNSELLING BOARD 2020 AND PRINCIPAL GOVT. DENTAL COLLEGE & ORS.
[2020] 12 S.C.R. 161, Supreme Court of India, 2020
Outcome: Disposed off
Segment: Facts
A
B
C
D
E
F
G
H
161
NILAY GUPTA
v.
CHAIRMAN NEET PG MEDICAL AND DENTAL ADMISSION/
COUNSELLING BOARD 2020 AND PRINCIPAL GOVT.
DENTAL COLLEGE & ORS.
(Civil Appeal No. 3345 of 2020 Etc.)
OCTOBER 09, 2020
[L. NAGESWARA RAO AND S. RAVINDRA BHAT, JJ.]
Education/Educational Institutions:
Admission – To Post Graduate Medical and Dental Courses
– In Colleges in the State of Rajasthan – For academic year
2020-2021 – Change in seat matrix, eliminating NRI Quota and
merging the same with management quota – Challenged by two NRI
Candidates – Single Judge of High Court held elimination of NRI
Quota as unsustainable and directed admission of the candidates –
Admission of the candidates in NRI quota pursuant to the order –
Division Bench of High Court set aside the order of Single Judge –
Appeal to Supreme Court – Held: NRI quota is not an unqualified
and unalterable part of the admission process in post-graduate
medical courses – Management has the discretion to indicate
whether, and to what extent, NRI reservation could be provided –
However, while exercising such discretion, reasonable notice should
be given to those aspiring for such seats – Single Judge could not
have directed admission of the candidates – In the facts of the case,
the final seat matrices acted to the disadvantage of NRI candiates –
Therefore, in order to do complete justice to all the parties, it is
directed that a special counselling session be carried out, confined
only to number of seats filled as a result of
Single Judge’s judgment
– Such seats to be offered to the NRI candidates on merit basis –
The seats vacated by such merited students shall then to be offered
to the beneficiaries of the order of Single Judge – The special
counselling should not disturb those admissions where the NRI
candidates had accepted deletion of NRI quota and were
accommodated in management quota – Medical Council of India
Act, 1956.
[2020] 12 S.C.R. 161
161
A
B
C
D
E
F
G
H
162
SUPREME COURT REPORTS
[2020] 12 S.C.R.
Disposing of the matters, the Court
HELD : 1.1 A combined effect of the provisions of the
Medical Council of India Act, 1956 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, the
respondent management possessed the discretion to indicate
whether, and to what extent, NRI reservations could be provided.
There is nothing in *PA Inamdar case, 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.
[Para 28][184-B-E]
1.2 Nevertheless, 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. [Para 30][185-C-D]
1.3 In the present case the admission calendar appears to
have been thrown out of gear on account of the Covid-19
pandemic. 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. When
the final seat matrices were published on 13.04.2020, it acted to
the unfair detriment of these NRI students. The NRI students
had not only started applying for counselling, but had also
submitted all their documents for verification to determine their
A
B
C
D
E
F
G
H
163
eligibility for the NRI quota seats, and in a sense, committed
themselves as candidates for NRI quota seats in Rajasthan.
[Para 30][185-E-F; 186-A-C]
1.4 Thus, 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. [Para 33][187-B-D]
1.5 The writ proceedings initiated by the two candidates
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 *PA Inamdar case. Though 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 primary
choices, due to their relative standing in the state merit list of
NEET eligible candidates. [Para 31][186-C-G]
*P.A. Inamdar & Ors. v. State of Maharashtra (2005) 6
SCC 537 : [2005] 2 Suppl. SCR 603; Modern Dental
College and Research Centre v. State of M.P & Ors.
2012 (7) SC 433 : [2012] 5 SCR 768; Manipal
University v. Union of India (2017) 15 SCC 664; TMA
Pai Foundation v. State of Karnataka (2002) 8 SCC
481 : [2002] 3 Suppl. SCR 587; Christian Medical
College Vellore Association v. Union of India,
(2020) SCC OnLine SC 423  – referred to.
NILAY GUPTA v. CHAIRMAN NEET PG MEDICAL & DENTAL ADMISSION/
COUNSELLING BOARD 2020 & PRINCIPAL GOVT. DENTAL COLLEGE
A
B
C
D
E
F
G
H
164
SUPREME COURT REPORTS
[2020] 12 S.C.R.
2.1 The Single Judge could not have directed admission of
the candidates. 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).
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 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. [Para 29][184-E-G; 185-A-C]
Tirumala Tirupati Devasthanams v. K. Jotheeswara
Pillai, (2007) 9 SCC 461 : [2007] 6 SCR 1; Bihar
Eastern Gangetic Fishermen Coop. Society Ltd. v.
Sipahi Singh (1977) 4 SCC 145 : [1978] 1 SCR  375 ;
K. V. Rajalakshmiah Setty v. State of Mysore, AIR 1967
SC 993 : [1967] SCR 70 ; Bihar Eastern Gangetic
Fishermen Coop. Society Ltd. v. Sipahi Singh, (1977) 4
SCC 145 : [1978] 1 SCR  375 – relied on.
2.2 The directions of the Single Judge 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 Judge’s
directions. Another round of admissions to postgraduate seats
was given to the third-party appellants. [Para 32][186-F-H; 187-
A-B]
2.3 In the circumstances of the present case and to do
justice to all the parties, it is directed that a special counselling
session should be carried out by the board, confined or restricted
A
B
C
D
E
F
G
H
165
to the seats in respect of which admissions were made pursuant
to the Single Judge’s directions. In this counselling session, the
board should ensure participation of the concerned colleges; the
counselling shall be a limited one, confined only to the number of
seats offered and filled as a result of the Single Judge’s judgment.
Such seats shall be offered to the NRI applicants solely on the
basis of merit; the seats vacated by such merited students (in
the other disciplines) shall then be offered to the beneficiaries of
the Single Judge’s orders. If for any reason, such students (i.e.
lower down in NRI merit, who are offered seats in other
disciplines) do not wish to take up the offer, the college concerned
shall refund the fee collected from such student. It is also made
clear that this special round of counselling should not disturb
those admissions, where students had accepted the deletion of
the NRI quota, and were accommodated in the management quota,
unless they had approached the court at the earliest opportunity,
in April 2020, before the judgment of the Single Judge. [Para
34][187-D-G]
2.4 It is clarified 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 the present case.
The directions are with regard to the circumstances of the present
case, and to do complete justice to all parties. [Para 35][187-G-
H; 188-A-B]
Case Law Reference
[2005] 2 Suppl. SCR 603
referred to
Para 11
[2012] 5 SCR 768
referred to
Para 11
(2017) 15 SCC 664
referred to
Para 11
[2002] 3 Suppl. SCR 587
referred to
Para 17
(2020) SCC OnLine SC 423
referred to
Para 28
NILAY GUPTA v. CHAIRMAN NEET PG MEDICAL & DENTAL ADMISSION/
COUNSELLING BOARD 2020 & PRINCIPAL GOVT. DENTAL COLLEGE
A
B
C
D
E
F
G
H
166
SUPREME COURT REPORTS
[2020] 12 S.C.R.
[2007] 6 SCR 1
relied on
Para 29
[1978] 1 SCR 375
relied on
Para 29
[1967] SCR 70 
relied on
Para 29
[1978] 1 SCR 375
relied on
Para 29
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3345
of 2020.
From the Judgment and Order dated 25.08.2020 of the High Court
of Judicature for Rajasthan Bench at Jaipur in DB Special appeal Writ
No. 499/2020 in S.B.Civil Writ Petition No. 5426 of 2020.
With
CIVIL APPEAL NOS. 3346 – 3348, 3349, 3350 & 3351- 3352
Of 2020.
Shyam Divan, Siddhartha Dave, V.Giri, Wasim A Qadri, Dr. Manish
Singhvi, P.S. Narasimha, Nakul Dewan, Sr. Advs, D.K. Garg, Pulkit
Manuja, Dhananjay Garg, Abhishek Garg, Anand Varma, Sandeep Singh
Shekhawat, Abhishek Prasad, Sanchar Anand, Vinay Kumar Misra,
Anant Kumar Vatsya, Devendra Singh, Ms. Udita Singh, Sandeep Kumar
Jha, Shiv Mangal Sharma, M/s. Aura & Co., Gaurav Sharma, Saransh
Saini, Anshul Sharma, Bhrigu Sharma, Puneet Parihar, M/S. Unuc Legal
LLp, Purvish Jitendra Malkan, Ms. Dharita Purvish Malkan, Ms. Deepa
Gorasia, Ms. Neha Ambastha, Ms. Bhavna Sarkar, Advs. for the
appearing parties.
The Judgment of the Court was delivered by
S. RAVINDRA BHAT, J.
1. These appeals were heard with the consent of learned counsel
for the parties.
2. The appellants are aggrieved by a decision of a Division Bench
of the Rajasthan High Court, which upset the findings of a learned Single
Judge of that High Court, who found that the change of seat matrix for
admission to post
graduate (PG) medical and dental seats in colleges in
the State of Rajasthan, for the academic year 2020-21, by eliminating
the Non-Resident Indian (NRI) quota was unsustainable in law. The
appellants were admitted pursuant to the direction issued by the learned
A
B
C
D
E
F
G
H
167
Single Judge, who had ruled that the deletion of such quota was contrary
to law. Two sets of appeals and intervention applications arise for
consideration: one, appeals arising from petitions filed by Dr. Nilay Gupta,
and Dr. Surmil Sharma, the original writ petitioners (who had succeeded
before the single judge and were consequently given admission as NRI
candidates) and two, appeals filed by Dr. Arushi Mittal, Dr. Priyanka
Sharma, Dr. Anjali Agarwal, Dr. Aditya Punia, Dr. Varun Bhargava and
Dr. Deepak Ramnani, who are aggrieved by the impugned judgment
inasmuch as the admissions they were granted pursuant the single judge’s
directions, despite not being parties to the original writ petition, have
now been overturned. An application to intervene has been preferred by
Dr. Tirth Jitendra Kumar Modi, who was granted admission to a PG
course in the respondent private college on 27.08.2020, after the impugned
judgment was delivered; he has paid the fees and attended classes so
far.
3. The factual matrix is that the process of admission to PG medical
and dental courses for academic year (AY) 2020-21 began sometime in
early 2020. The procedure for selection for admissions began with the
NEET Post Graduate Test/Common Eligibility Test, which was held in
January, 2020. The schedule/calendar for filling of the PG seats was
made available online and also published in leading newspapers.
Contemporaneously, a meeting of the PG Counselling board for admissions
to
MD/MDS course was held by the Chairman, NEET PG Counselling
board – 2020 (hereafter “board”). This meeting held on 17.03.2020,
was attended by representatives of colleges, including private colleges
as well as officials of the State and Union Governments. The minutes,
inter alia, recorded as follows:
“The following is a brief record of discussions held and
decisions taken during the meeting.
1. The notification for NEET PG Medical Dental advertisement
was discussed finalized and approved.
2. The instruction booklet was discussed and finalized and
on direction it was decided to send it to Hon’ble Advocate
General for vetting.
3. The seat matrix and fees structure was obtained from all
medical dental colleges.
NILAY GUPTA v. CHAIRMAN NEET PG MEDICAL & DENTAL ADMISSION/
COUNSELLING BOARD 2020 & PRINCIPAL GOVT. DENTAL COLLEGE
[S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
168
SUPREME COURT REPORTS
[2020] 12 S.C.R.
4. It was decided to send the instruction booklet along with
seat matrix and the fee structure information obtained from
all the medical dental college to the Government.
5. Seats remaining vacant, if any due to non availability of
NRI candidates in second round of counselling will be filled
up as per merit and choice of the candidates applying under
15% quota of the college and fees as prescribed by the fee
committee of the college.
Meeting ended with the vote of thanks.”
4. The NEET PG 2020 examination had been held sometime in
January, and the results were declared on 31.01.2020. The appellants
were registered under the NRI category with the board for allotment of
seats in the discipline of MD (Radio-diagnosis) in Rajasthan, sometime
in the third week of March 2020.
5. The Instruction Booklet for State Medical & Dental PG Seats
Allotments, 2020, which intimated the terms which applied to candidates
stated inter alia that:
(a) NEET qualified candidates possessing a degree of MBBS/
BDS from colleges situated in the State of Rajasthan, and all
medical officers/ medical teachers serving under the
Government of Rajasthan are eligible to participate for
admissions in 50% of the total seats in private medical colleges;
(b) For the remaining 50% of the total seats in private colleges,
all NEET qualified candidates possessing an MBBS/ BDS
degree from anywhere are eligible to participate;
(c) There are 3 types of seats as
per the Medical Council of India
(MCI) – government seats, management seats, and NRI seats.
The responsibility for the type of seats in the seat matrix lie
with the concerned institution.
6.  The Instruction Booklet further stipulated, inter alia, that the
seat matrix would be announced in “due course”. The medical and dental
colleges which offered admissions, were to delineate the categories of
seats as well as the respective fee to be charged in accordance with
prevailing laws, regulations etc. Clause 19 of the Instruction Booklet
required separate documents to be furnished for NRI candidates in
Proforma II and in the form of undertakings.
A
B
C
D
E
F
G
H
169
7. The eligibility for filling NRI seats was spelt out in the following
terms:
“Eligibility for NRI Seats
As per order no. F.5 (968)DME/LC/2018/1997 dated
29.04.2019 of Government of Rajasthan, following will be
the guidelines applicable for the admission in Under
Graduate/Post Graduate, Medical/Dental courses under NRI
quota in all Private and Government institutions of the State:
1. At least one of the parents of students should be an NRI
and shall ordinarily be residing abroad as an NRI; or
2. The person who sponsors the student for admission should
be a first degree relative of the student (i.e. real Brother/real Sister)
and should be ordinarily residing abroad as an NRI; or
3. If student is taken as a ward by some other nearest relative
[as mentioned below (i) to (v) such students also may be considered
for admission provided the guardian has bonafidely treated the
student as a ward. For this following nearest relative (NRI) of
candidate, who should be ordinarily residing abroad as an NRI
can only be considered:
(I) Real Brother and sister of father i.e. real uncle and real
aunt.
(ii) Real brother and sister of mother i.e. real maternal uncle
and maternal aunt.
(iii) Father and mother of father i.e. grandfather and
grandmother.
(iv) Father and mother of mother i.e. maternal grandfather
and maternal grandmother.
(v) First degree-paternal and maternal cousins.”
4. All NRI candidates shall submit a proof being sponsored
as NRI/OCI/PIO in the form of
certificate issued by the Indian
embassy/Ministry of external affairs, Government of India for this
purpose. In the absence of that certificate a duly notarized
undertaking executed by the sponsor and notarized by the Notary
Public of the foreign country where the sponsor resides being
NILAY GUPTA v. CHAIRMAN NEET PG MEDICAL & DENTAL ADMISSION/
COUNSELLING BOARD 2020 & PRINCIPAL GOVT. DENTAL COLLEGE
[S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
170
SUPREME COURT REPORTS
[2020] 12 S.C.R.
submitted by the sponsor, it be treated as sufficient as to the factum
of the residence of the sponsor.
5. An affidavit from the sponsor that he/she looks after such
student and will sponsor the entire course fee of the candidate.
(Refer requirement of additional documents for candidates
applying for NRI seats under ‘List of documents to be deposited at
the time of reporting’, Page 11 and 12 of the instruction booklet)
Priority
For admission under NRI Quota in Medical/Dental Courses
in the colleges in the State of Rajasthan, priority shall be given to
the NRI with ancestral background of the State of Rajasthan by
own/parents/Grandparents resided in State of Rajasthan at least
for a period of 5 years at any time. The proof of residence will also
be applicable for the consideration priority for NRI Quota, for which
document (electricity/water bill/Documents of immovable property/
Indian Passport/Ration Card/Voter ID/Aadhaar Card etc.) to the
effect for this criteria is required to be submitted by ward of NRI
(including PIO/OCI).
Firstly, allotments of NRI Quota seats shall be allotted to
candidate having ancestral background of the State of Rajasthan
by own/parents/Grandparents resided in State of Rajasthan at least
for a period of 5 years. Later on remaining Vacant NRI seats will be
allotted/filled by the candidates of NRI belonging to other states.
For PIO/ OCI: Overseas Citizens of India (OCI), Persons of
Indian
Origin (PIO) are allowed for admission under NRI Quota.”
8. On 11.04.2020 apparently, one of the respondents, i.e. Mahatma
Gandhi Medical College, Jaipur (hereafter “MGMC”), published its
admission notification which stated inter alia that the total MD seats
offered were 144; that NRI/management quota seats would be 22, (i.e.
15% of the total seats) and that other than NRI/management quota seats,
the other 50% would be state quota seats (of the total, i.e. 72) and 50
seats were All India quota seats. The details of MD/MS seats available
in the MGMC were also shown in a tabular form. For MD (Radio
diagnosis), 1 seat was earmarked in the All-India 35% quota; 3 seats
were set apart for the state quota; and 2 seats were set apart for NRI/
management quota seats. The appellants had by then, furnished the
A
B
C
D
E
F
G
H
171
requisite documents to claim admission in the NRI quota sometime in
early March itself.
9. The original notice spelling out the schedule for admissions,
including verification of documents etc. had fixed 30.03.2020 as the date
for verification of status of NRI applicants. This process was postponed
on 10.04.2020, to 14.04.2020. Before that date, however, on 13.04.2020,
the State NEET PG Counselling board published a seat matrix in which
the NRI quota was shown as NIL. It transpired that the MGMC had, in
the meanwhile furnished a seat matrix to the State NEET Board showing
that there would be no separate seats earmarked for the NRI quota, and
that such NRI candidates would be considered for admission in the
management quota. The final seat matrix for PG medical allotments for
AY 2020-21 - furnished by the MGMC - was annexed to the reply filed
by the board before the single judge. It clearly showed that 22 seats
were set apart as ‘management’ seats, and none were shown as part of
the management seats under the NRI quota. With respect to Radio
Diagnosis, the position was that out of a total of 6 seats, 1 was kept
apart as ‘management quota’.
On 14.04.2020, a notification was issued by the board stating
that the seat matrix for the current year would not contain the NRI
Quota. The said notification/ intimation read as follows:
“Office of the Chairman,
NEET PG Medical & Dental Amission/Counseling Board -2020
and Principal, Govt. Dental College, Subhash Nagar,
Behind
T. B. Hospital, Jaipur, Rajasthan
Phone: 0141-2280090
NEET PG MEDICAL & DENTAL ADMISSION/COUNSELING
2020
(Rajasthan State)
IMPORTANT INFORMATION
FOR
NRI CANDIDATES
14.04.2020
Seat Matrix (13.04.2020) available at the website (compiled
on the basis of seats information provided by respective
colleges) does not have any NRI seat this year. The candidates
NILAY GUPTA v. CHAIRMAN NEET PG MEDICAL & DENTAL ADMISSION/
COUNSELLING BOARD 2020 & PRINCIPAL GOVT. DENTAL COLLEGE
[S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
172
SUPREME COURT REPORTS
[2020] 12 S.C.R.
who have applied for allotment on NRI seats will accordingly
be considered based on their remaining eligibility criteria.
Chairman
NEET PD Medical & Dental Admission
Counseling Board-2020 and
Principal, Govt. Dental College, Jaipur
10. Feeling aggrieved, the two appellants, i.e. Dr. Nilay Gupta
and Dr. (Ms) Surmi Sharma (both of who had concededly applied as
NEET qualified candidates for the admission in the NRI seats) approached
the Rajasthan High Court, contending that the decision to do away with
the NRI quota was arbitrary. They highlighted their having received a
notice on 10.04.2020 to be in readiness for online counselling towards
admission to the NRI seats. They relied upon the minutes of the meeting
dated 17.03.2020 and submitted that the the NEET Counselling Board
was to first fill the NRI seats in NRI quota, and if there were no left out
seats, to fill them as part of the larger management quota. It was also
submitted that on 13.04.2020, the NEET PG Counselling Bord whimsically
and without any rationale, in its final seat matrix deleted the NRI quota
altogether following it up with a notification of 14.04.2020, stating that
all NRI seats would now be considered as part of the management
quota. The board and the MGMC resisted the writ petition, especially
the appellants’ reliefs claimed (that the respondents be directed to give
them admission to seats as NRI candidates). It was stressed by the
respondents
that no student has a right to claim admission and that private
medical colleges cannot be compelled to earmark a separate quota for
NRI candidates if they chose not to do so out of volition. It was further
stated that NRI candidates could and were considered for admission to
seats in the management quota.
11. By the judgment and order dated 10.07.2020, the learned Single
Judge of the High Court, relying upon the seven judges’ ruling of this
Court in P.A. Inamdar & Ors. v. State of Maharashtra1, as well as
other rulings2 held that after having appeared in the NEET PG
examination and qualifying it, and after having approached the colleges
(including MGMC) for the NRI seats, the appellants could not be deprived
of their choice of admission in NRI seats by the respondents through the
1 (2005) 6 SCC 537
2 Modern Dental College and Research Centre v. State of M.P & Ors.. 2012 (7) SC 433
and Manipal University v. Union of India (2017) 15 SCC 664.
A
B
C
D
E
F
G
H
173
process of deletion of the NRI quota seats altogether. The learned Single
Judge held that there can be no distinction between the NRI seats and
management seats and it was only after exhausting the option of filling
eligible NRI candidates in that quota that the remaining seats in the 15%
could be treated as management quota seats. Relying upon the minutes
of the meeting of 17.03.2020, which indicated the sequence of admission
(in which NRI students were to be first counselled for the purpose of
their document verification, after which management seats could be filled),
it was held that the change of policy mid-stream as it were, by the board
and the colleges was contrary to law. The learned Single Judge also
directed that the appellants, i.e. the writ petitioners before the High Court
should be given admission forthwith.
12. In compliance with the directions of the single judge, the two
appellants were given admission to courses of their choice. Since the
judgment had far reaching repercussions, third party appeals were filed
by students who had been offered MD/MDS seats in the management
quota, and who faced threat to their admission; likewise, the board too
appealed. The Division Bench allowed these appeals by the impugned
judgment, by accepting the plea of the colleges, the board and the third-
party appellants. The Division Bench reasoned that no student can claim
a right to a quota (NRI quota in this case). It also held that the judgments
of this
court in P.A. Inamdar3 and the other decisions nowhere indicate
that an obligatory NRI quota should be earmarked by all private colleges,
which have a choice of either doing it, or filling the seats, which otherwise
fall within the management quota, as part of the management quota
seats. In other words, according to the Division Bench, the private
institution has the choice of earmarking an NRI quota or not doing so,
and proceeding to fill the management quota by considering NRI students
as part of the general management seats quota. The impugned judgment
also held that the respondents could not be blamed for not providing an
NRI quota, or for changing the seat matrix; it further noted that the
object of carving out a quota was to enable the private institution to
charge a higher fee; in the present case, it held that the fee prescribed
for NRI candidates and management quota candidates was the same;
therefore, the private colleges could well exercise their discretion not to
earmark an NRI quota.
3 Supra n.1
NILAY GUPTA v. CHAIRMAN NEET PG MEDICAL & DENTAL ADMISSION/
COUNSELLING BOARD 2020 & PRINCIPAL GOVT. DENTAL COLLEGE
[S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
174
SUPREME COURT REPORTS
[2020] 12 S.C.R.
13. Mr. V. Giri, learned senior counsel for the appellants argued
that the action of the board, in countenancing the MGMC’s decision to
abolish the NRI quota, after calling the students to opt for such quota,
much after the declaration of NEET test results on 31.01.2010, is
arbitrary. It was urged that the entire sequence in this case, shows that
the board, the universities and the concerned colleges were clear that
there would be an NRI quota and that if seats from that quota, after the
counselling, remained unfilled, only such residual seats would be filled
up by management quota candidates. Much emphasis was placed upon
the minutes of the meeting dated 17.03.2020, under the aegis of the
board, to which all colleges were parties. This court’s attention was also
drawn to the original seat matrix, published in the notification dated
11.04.2020, of MGMC, which clearly represented that out of 144 seats
in the MGMC, a clear 15% NRI quota was shown; and that the table
even detailed that two NRI seats in the Radio Diagnosis discipline for
MD seats. Being so, the board and the MGMC could not have gone
back on their decisions, at a late stage, when the students (who had
opted for NRI seats in Rajasthan) were left with little or no choice.
14. Mr. Siddharth Dave, learned senior counsel appearing for
another candidate who was prejudiced on account of the Division Bench’s
directions, supported Mr. Giri’s submissions. He
highlighted that right
from the decision in P.A. Inamdar4 this court has maintained that an
NRI quota is available for overseas/NRI candidates, who wish to
undertake studies in private colleges in India, especially in medical
courses. There is a twin objective behind creation of this quota: first, to
augment the coffers of the private college, and enable “cross-
subsidization” of seats, for the benefit of meritorious but poor students,
and secondly, to enable students who have been schooled abroad to
culturally immerse themselves and find their roots in Indian society. Such
being the case, the managements of private colleges could not have
unilaterally and at the last moment, withdrawn this quota, to the detriment
of the students who had consciously opted for it, and were left with little,
or worse, no options. It was submitted that even the seat matrix shown
last, i.e. on 13.04.2020, should not have included management quota
candidates as eligible for the NRI quota; this aspect was noticed, and
commented upon by the single judge, based on a correct reading of the
scheme of admissions.
4 Supra n.1
A
B
C
D
E
F
G
H
175
15.  Mr. Wasim Qadri, learned senior counsel, Mr. Anand Verma
and Mr. DK Garg, learned counsel, made submissions on behalf of
candidates. It was submitted that as a result of the single judge’s directions,
another round of counseling had taken place and students were
accommodated in the NRI quota; they had to give up the seats which
they had previously opted for, in other medical colleges, to accept NRI
seats, because that conformed to their choice of discipline. Hence,
submitted these counsel, the Division Bench’s ruling has resulted in
adverse consequences to them.
16. Mr. Manish Singhvi, learned Additional Advocate General for
the state of Rajasthan, argued that the NRI quota could not apply in the
facts and circumstances of the case as the institutions (private colleges)
had not claimed any seats under the NRI quota, for which the seat
matrices were furnished by them on 11.04.2020. The allotment of seats
was thus required to be made strictly in accordance with the merit of the
candidates who had applied in the NRI quota, as well as for the
management seats. It was urged that the learned Single Judge erred in
usurping the powers of the Counselling Board and directing it to allot
particular subjects (Radio-diagnosis to Dr. Nilay Gupta and Obstetrics
& Gynaecology to Dr. Ms. Surmil Sharma).
17. Mr. Nakul Dewan, learned senior counsel appearing for the
intervenor, Dr. Modi, highlighted that due to disruption which occurred
on account of the Covid-19
pandemic, the process for admission of PG
courses was delayed; on 10.04.2020, the revised schedule was issued
by the board. When the private colleges had to furnish their seat matrices
to the board, they took a decision not to avail of the NRI quota. Thus, the
board published the seat matrix, which clearly indicated that 22 seats
were earmarked for candidates who had applied in the management
quota category. Agreeing with the submissions on behalf of the state,
that an NRI quota was not obligatory, Mr. Dewan contended that the
genesis of that quota can be traced to the observations in TMA Pai
Foundation v. State of Karnataka5 that unaided private colleges are
“entitled to autonomy in their administration” even when they are
bound to make merit-based admissions. The court had stated that a
“certain percentage” (of the total intake) can be set apart to be filled
by college managements, based on merit determined by a common test,
to be conducted by the state or its agencies, or the college. These
5 2002 (8) SCC 481
NILAY GUPTA v. CHAIRMAN NEET PG MEDICAL & DENTAL ADMISSION/
COUNSELLING BOARD 2020 & PRINCIPAL GOVT. DENTAL COLLEGE
[S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
176
SUPREME COURT REPORTS
[2020] 12 S.C.R.
observations were elaborated, and the court enabled the creation of an
NRI quota in such colleges, in P.A Inamdar6. He also relied on the
subsequent decision in Modern Dental College7.
18. Mr. Shiv Mangal Sharma, appearing for the fourth respondent,
i.e. Dr. Anjaneya Singh Kathait, in the appeal filed by Dr. Deepak
Ramnani, supported the submissions of Shri Dewan, and highlighted that
all candidates who were granted admissions in the NRI quota, after the
single judge’s directions, were considerably low in merit. They were
given undeserving benefit, entirely because of erroneous directions by
the single judge, who could have at best required the board to consider
NRI candidates, on the basis of their merit, in the NEET process. It was
submitted that as a result, there was no question of interfering with the
impugned judgment, which was justified both on merits as well as in law.
This position was also adopted on behalf of the board, which is separately
arrayed as respondent.
Analysis and Conclusions
19. The documents on the record show that a total of 717 seats
were initially notified for admission in postgraduate medical courses in
government colleges in the Rajasthan State; 427 of were notified as
intake in five private colleges in the state. The board, in its notification
dated 10-04-2020 had stated that the rescheduling of Central NEET
Counselling for the state of Rajasthan had been re-notified; the fresh
schedule
for the state indicated that counselling fee was to be deposited
between 11.04.2020 and 13.04.2020. Concurrently the online registration
for first counselling and information for filing of applications by the
candidates was between 11.04.2020 and 13.04.2020, up to 11.55 PM.
The third and fourth steps comprised of verification of disability certificate
of all persons with disabilities as well as verification of status of NRI
applicants. Management quota seats were notified by MGMC on
13.04.2020; these were 22 (out of a total of 144 seats available in that
college.) During the intervening period, the private colleges lodged their
seat matrices; consciously, they omitted the NRI quota. After publishing
the matrix on 13.04.2020 and after the board’s notification of 10.04.2020
(setting out sequentially, in terms of date and time, the steps to be taken
for registration counselling and admission), the final position vis-à-vis
unavailability of NRI seats was notified on 14.04.2020.
6 Supra n.1
7 Supra n.2
A
B
C
D
E
F
G
H
177
20. The provisions of the Rajasthan University of Health Sciences
Act, 20058 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
provides9 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).10
8 Section 7
9 Section 32, which reads as follows:
“32. Admissions. - (1) Admission in she University shall be made strictly on the basis
of merit.
(2) Merit for admission in the University may be determined either on the basis of
marks or grade obtained in the qualifying examination and achievements in co-curricular
and extra-curricular activities or on the basis of marks or grade obtained in the entrance
test conducted at the State level either by an association of the universities conducting
similar courses of by any agency of the State:
Provided that admission in professional and technical courses shall be made only
through entrance test.
(3) Reservation in admission to the University 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.”
10 Regulation 9, to the extent it is relevant, introduced in 2018, reads as follows:
“9. Procedure for selection of candidate for Postgraduate courses shall be as follows:-
(1) There shall be a uniform entrance examination to all medical educational institutions
at the Postgraduate level namely ‘National Eligibility-cum-Entrance Test’ for admission
NILAY GUPTA v. CHAIRMAN NEET PG MEDICAL & DENTAL ADMISSION/
COUNSELLING BOARD 2020 & PRINCIPAL GOVT. DENTAL COLLEGE
[S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
178
SUPREME COURT REPORTS
[2020] 12 S.C.R.
21. The rival contentions of the parties may be summarized as
follows. The original writ petitioners, (all of whom are before this court)
argue on the one hand that the admission process really began sometime
in January 2020 when the NEET written test took place. The meeting
convened by the board and attended by all parties concerned including
private colleges who participated in admissions to postgraduate courses
in private colleges, clearly intended as on 17.03.2020, to fill up the 15%
quota firstly amongst eligible NRI candidates and thereafter fill the leftover
seats as part of the management quota. This understanding resulted in
two consequences for NRI candidates; the first was that they filed their
applications and produced all relevant documents to support the claim
that they were eligible for that quota; secondly with the publication of
the board’s notification of 10.04.2020, some of them (if not all of them)
had applied as NRI candidates within the time indicated in the rescheduled
timeline. Thus, goes the argument, having held out to all NRI candidates
about the availability of seats for that quota as well as the sequence of
to postgraduate courses in each academic year and shall be conducted under the overall
supervision of the Ministry of Health & Family Welfare, Government of India.
(2) The “designated authority” to conduct the ‘National Eligibility-cum-Entrance Test’
shall be the National Board of
Examination or any other body/organization so designated
by the Ministry of Health and Family Welfare, Government of India.
(3) In order to be eligible for admission to Postgraduate Course for an academic year,
it shall be necessary for a candidate to obtain minimum of marks at 50th percentile in
the ‘National Eligibility-Cum-Entrance Test for Postgraduate courses’ held for the said
academic year. However, in respect of candidates belonging to Scheduled Castes,
Scheduled Tribes, and Other Backward Classes, the minimum marks shall be at 40th
percentile. In respect of candidates with benchmark disabilities specified under the
Rights of Persons with Disabilities Act, 2016, the minimum marks shall be at 45th
percentile for General Category and 40th percentile for SC/ST/OBC. The percentile
shall be determined on the basis of highest marks secured in the All India Common
merit list in National Eligibility-cum-Entrance Test for Postgraduate courses.
Provided when sufficient number of candidates in the respective categories fail to secure
minimum marks as prescribed in National Eligibility-cum-Entrance Test held for any
academic year for admission to Postgraduate Courses, the Central Government in
consultation with Medical Council of India may at its  discretion lower the minimum
marks required for admission to Post Graduate Course for candidates belonging to
respective categories and marks so lowered by the Central Government shall be
applicable for the academic year only.
(4) The
reservation of seats in Medical Colleges/institutions for respective categories
shall be as per applicable laws prevailing in States/Union Territories. An all India merit
list as well as State-wise merit list of the eligible candidates shall be prepared on the
basis of the marks obtained in National Eligibility-cum-Entrance Test and candidates
shall be admitted to Postgraduate Courses from the said merit lists only.”
A
B
C
D
E
F
G
H
179
filling up those seats, at the penultimate hour, the board could not have
decided unilaterally or even permitted colleges unilaterally to withdraw
the NRI quota seats altogether. In support of their arguments two lines
of authorities are cited: the first are those judgements starting with P.A.
Inamdar11 which hold that while private educational institutions have
the right to admit students of their choice, that right can be regulated by
law and that a quota for NRI candidates to the extent of 15% is
permissible. The second is the line of reasoning which says, typically in
the context of selection process for recruitment to public posts12, that
once the process begins, there cannot be a change in the “rules of the
game”, i.e. substantial change in the matrix of consideration which
adversely or irreversibly affects the prospects of candidates who reposed
their faith and expectations on the integrity of the procedure, and its
continuance till its completion.
22. The arguments of the state, the colleges and candidates (who
were admitted to the seats after the impugned judgment), on the other
hand, is that P.A. Inamdar13 did not carve out the NRI quota in stone. In
other words, private educational institutions including medical colleges,
are not obliged to set apart such a quota, and that the observations of
this court in the said decision only enable the colleges or universities to
avail of that quota to the extent of 15%. In a given year, the management
of
the private college may choose not to have any quota for NRI
candidates; in the next year, it may choose to have it but not to the extent
of 15% and prefer to limit it to 5%; likewise, for the third year, depending
on demand, the private college or institution may provide for 15% NRI
quota. It is hence argued that the decision of all private colleges in
Rajasthan not to avail of the NRI quota reservation or set apart, and
rather fill up the entire 15% from amongst those who had opted for
management seats, was justified. The counsel appearing for the private
colleges urged that the decision not to offer an NRI quota in medical
colleges in the state of Rajasthan was voluntarily and consciously taken,
given the extraordinary and unusual situation created by the pandemic.
The explanation given by the colleges was that in their assessment, NRI
quota seats might not have been filled up to the normal expected levels
and in the circumstances, it was more appropriate to merge the seats
earmarked for NRI candidates with the management seats. The
11 Supra n.1
12 K. Manjushree v. State of Andhra Pradesh & Anr.,(2008) 3 SCC 512
13 Supra n.1
NILAY GUPTA v. CHAIRMAN NEET PG MEDICAL & DENTAL ADMISSION/
COUNSELLING BOARD 2020 & PRINCIPAL GOVT. DENTAL COLLEGE
[S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
180
SUPREME COURT REPORTS
[2020] 12 S.C.R.
accommodation of NRI quota candidates who had opted to be treated
as such, in the admission process was transparent and uniform in that all
of them were considered on merits for the management quota seats.
Thus, there was no real prejudice suffered by such NRI candidates. It
was underlined by the candidates admitted pursuant to the impugned
judgement, that were the clock to be set back and the directions of the
single judge affirmed, they would be irreparably prejudiced. It was lastly
argued that the single judge could not have directed the admission of the
petitioners who had approached the High Court, regardless of their merit,
even within the NRI quota.
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 Inamdar14
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:
14 Supra n.1
A
B
C
D
E
F
G
H
181
“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 Academy’s direction to
regulate.”
(emphasis supplied)
NILAY GUPTA v. CHAIRMAN NEET PG MEDICAL & DENTAL ADMISSION/
COUNSELLING BOARD 2020 & PRINCIPAL GOVT. DENTAL COLLEGE
[S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
182
SUPREME COURT REPORTS
[2020] 12 S.C.R.
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 Inamdar15
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.
26. The board’s notification dated 10.04.2020 with respect to the
sequence or calendar of events, for the purpose of admissions to PG
courses in medical colleges in Rajasthan, on which much emphasis was
placed, reads as follows:
15 Supra n.1
A
B
C
D
E
F
G
H
183
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 Foundation16 was by a
larger bench of 11 judges, and PA Inamdar17 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
16 Supra n.3
17 Supra n.1
NILAY GUPTA v. CHAIRMAN NEET PG MEDICAL & DENTAL ADMISSION/
COUNSELLING BOARD 2020 & PRINCIPAL GOVT. DENTAL COLLEGE
[S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
184
SUPREME COURT REPORTS
[2020] 12 S.C.R.
private colleges’ autonomous decision making, they could set apart
some percentage of seats for admission to students of their choice.
The Inamdar18 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 court19 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 PA Inamdar20 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 court’s 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 law21 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.”22). The NRI
18 Supra n.1
19 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
20 Supra n.1
21 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.
22 Bihar Eastern Gangetic Fishermen Coop. Society Ltd. v. Sipahi Singh, (1977) 4 SCC
145.
A
B
C
D
E
F
G
H
185
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 board’s 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
NILAY GUPTA v. CHAIRMAN NEET PG MEDICAL & DENTAL ADMISSION/
COUNSELLING BOARD 2020 & PRINCIPAL GOVT. DENTAL COLLEGE
[S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
186
SUPREME COURT REPORTS
[2020] 12 S.C.R.
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 PA Inamdar23. 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 pandora’s
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
23 Supra n.1
A
B
C
D
E
F
G
H
187
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 judge’s 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.
34. In the circumstances of this case and to do justice to all the
parties, this court is of the opinion that a special counselling session
should be carried out by the board, confined or restricted to the seats in
respect of which admissions were made pursuant to the single judge’s
directions. In this counselling session, the board should ensure participation
of the concerned colleges; the counselling shall be a limited one, confined
only to the number of seats offered and filled as
a result of the single
judge’s judgment. Such seats shall be offered to the NRI applicants
solely on the basis of merit; the seats vacated by such merited students
(in the other disciplines) shall then be offered to the beneficiaries of the
single judge’s orders. If for any reason, such students (i.e. lower down
in NRI merit, who are offered seats in other disciplines) do not wish to
take up the offer, the college concerned shall refund the fee collected
from such student. It is also made clear that this special round of
counselling should not disturb those admissions, where students had
accepted the deletion of the NRI quota, and were accommodated in the
management quota, unless they had approached the court at the earliest
opportunity, in April 2020, before the judgment of the learned single judge.
The entire process shall be completed within a week from the date of
this judgment.
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
NILAY GUPTA v. CHAIRMAN NEET PG MEDICAL & DENTAL ADMISSION/
COUNSELLING BOARD 2020 & PRINCIPAL GOVT. DENTAL COLLEGE
[S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
188
SUPREME COURT REPORTS
[2020] 12 S.C.R.
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.
36. The appeals and pending applications are disposed of in the
above terms.
Kalpana K. Tripathy
Matters disposed of.