New Delhi: In the latest update regarding the Supreme Court hearing on the NRI students' plea seeking time for fresh registration before the NEET Mop-up round, the top court bench has directed the State of Kerala to carry out a fresh verification regarding the status of the NRI MBBS candidates and submit the report before the court.
Directing the Senior counsel Mr. Jaideep Gupta to comply with the directions and submit an affidavit in this regard, the top court bench comprising of Justices DY Chandrachud and Hima Kohli listed the matter for further hearing on May 4, 2022.
"In order to ensure that a proper verification is carried out, we request Mr Jaideep Gupta, senior counsel to ensure that a fresh exercise of verification is carried out in regard to the status of these candidates who claimed as NRI candidates and to place the result of verification on the record in the form of an affidavit. The affidavit shall be exchanged on or before the next date of listing," mentioned the order.
Such directions came from the bench after it took note of the fact that among the 38 petitioners, it was common ground that seven candidates were in the NRI category list which was originally published by the CCE on 31 January 2022. As for the rest, the submission of the State was that (i) twelve candidates lacked proper documentation; and (ii) nineteen candidates had not claimed NRI status.
As regards the seven candidates, who were in the original list of NRI candidates, Mr Jaideep Gupta, senior counsel appearing for the respondents stated that though four of them had registered their options for NRI seats in self-financing colleges, they did not furnish their options for the mop up round after the issuance of the notification dated 26 March 2022.
In order to controvert this submission, Mr Huzefa Ahmadi, senior counsel appearing on behalf of the petitioners submitted before the court that the option in regard to petitioner No 2 was uploaded on 28 March 2022. He further stated that similar options were available in respect of each of the other candidates forming a part of the seven candidates referred to above and perhaps in respect of others. He further claimed that he would furnish the necessary material in support to Mr Jaideep Gupta so that it can be verified.
Medical Dialogues had earlier reported that some NRI students had recently approached the Supreme Court seeking time for fresh registration before the mop-up round of NEET counselling. Apart from issuing notice in the matter, the top court had also directed the State of Kerala to inform the court about the unfilled vacant seats after the mop-up round.
The petitioner doctors approached the top court after the Kerala High Court dismissed a similar plea by the Kerala Private Medical College Management Association. It was submitted by the petitioner association that the rank list for eligible candidates in the NRI quota consisting of 618 rank holders got exhausted after two rounds of counselling. However, despite the exhaustion of the rank list, 57 seats in the NRI quota were lying vacant in the colleges under the association as on the date of filing the writ petition. It was contended that, since the money collected from the NRI students are utilized for benefiting students from economically weaker sections of the society, the respondents ought to have extended the period to fill up the vacant NRI quota seats.
When the matter reached the Supreme Court, the counsel for the petitioner students pointed out that 46 seats belonging to NRI quota were lying vacant and as per the rules those seats cannot be converted to any other category.
The top court had issued notice in the matter and directed the State of Kerala to inform the court about the unfilled vacant seats after the mop up round.
However, during the last hearing, the Status Report revealed that "out of 38 petitioners only 7 candidates figured in NRI Category List , 12 were excluded, 19 did not claim any quota and none had given option to any of the NRI in the mop up rounds. Total of 45 NRI seats were converted."
On the other hand, the counsel for the Association had claimed that the State had misguided the Court. At this outset, the top court bench had responded by saying, "The State has taken a categorical stand about the eligibility of the NRI candidates. If the government did something illegal you can pursue your claim against them personally. How do we cancel admission, there will be human tragedy. It will be a tragedy for us to say that."
During the hearing of the case on Friday, the counsel for the Association, Senior Advocate Dushyant Dave referred to several Supreme Court judgments where the right to establish medical institutions and the right to admit students has been considered and the cap has only been there regarding capitation fees. Referring to the top court judgment in the case of TMA Pai Foundation he submitted that the Private institutes have their right to admit NRI students up to 10-15%.
"Rationale behind this was important... that by charging the fees institutions will be able to subsidize the students coming from reserved categories and that was the rationale. Now this has been held that these seats are inviolable, sacrosanct and cannot be touched. Kerala has no power to touch these seats. It is the law declared by this court which governs the NRI seats," Counsel Dave was quoted submitting by
Live Law.
"Clause 5.5.4 of the prospectus says that in case any quota is left unavailable, it will go to the prohibited category and the special category is the army," he further submitted.
Taking note of this submission, the top court bench asked Advocate Jaideep Gupta, the counsel for the State of Kerala, "Why did you flip the quota? These seats provide sustainability to the institutions."
Responding to the question, the counsel for Kerala submitted that the proposition came only now. Further urging the court to listen to the National Medical Commission in this regard, he stated, "Algorithm which the MCC has put this category into the special reservation & provides for the flip. If this question has to be gone into, NMC should be heard. On mop up day when no applicants were left, it would either go flipped or waste and now they have filed the applications to allow candidates in the NRI Category. There were no applicants available & they are asking extension of time beyond the time which is of 6 months,"
Objecting to this submission, Counsel Dave for the Association submitted, "The law says that you can't touch it. They didn't allow students to operate the NRI option. A CBI inquiry should be ordered."
Pointing out that the petitioners pursuant to the closure of admissions requested to reopen the same at the stage of Mop Up, he further submitted, "Some of them now want to change over the NRI Category whereas the time for doing that was in 2021. 638 persons had shown their documents and had come in the category and now 638 seats have been exhausted now."
He also referred to the circular issued by DGHS on March 11, 2022, where the candidates had been given with an option to convert, he submitted, "State is misguiding your lordships completely & state is playing fraud upon the High Court. Even if the time limit is over, if they are contrary to the rules we will set aside the admissions- there is a judgment. Why should NRI students be deprived of their right to be considered? Facts are wrong."
Meanwhile, the counsel for the students, Senior Advocate Huzefa Ahmadi pointed out that as per the Status report submitted by the State, 7 students had claimed admissions as NRI students.
"Seats were 385 & candidates were 614. Even according to them, 7 students were available. Even they admit that there were actually 7 to the list they were available. For whatever reasons which were not far to see they wanted to accommodate the 45 from the state category. That's how they have acted. This technical argument should not come in my way with regards to the last date," submitted the counsel.
At this outset, he referred to Clause 5.5.4 of the Prospectus and argued that if the seats were unavailed, the clause was only regard to the Special and mandatory reservation. He also referred to various heads mentioned under special category wherein various heads were Ex Servicemen, dependent of defense personnel, serving defense personnel, CAPF, Jewish Quota, and pointed out before the top court bench that the NRI quota seats had not been covered by special reservation.
Again referring to various heads mentioned under the mandatory reservations including State merit, EWS in General Category, SEBC etc, the counsel submitted, "NRI is clearly not within either special or mandatory reservation and thus on reliance by the HC on 5.5.4 is ex facie erroneous. NRI Quota is creation of SC & the fees by NRI is subsumed for other category candidates but its not of special & mandatory reservation. This clause only comes in when they are unavailed."
"One thing is very clear that NRI is within the rubric of "special reservation". It's only if the seat is unavaialed," observed the bench at this outset.
The counsel for the students further referred to the fact that the option in regard to petitioner no 2 was uploaded on March 28, 2022. He pointed out that while registering fresh for the mop up round, the candidates had been asked to pay teh registration fee for the entrance examination and submitted, "Fresh options were given, these people paid their fees of Rs 1 lakh and they were very much there in the list. Now see the cut off dates which is very important. Till 30th you could apply. Now make a note that the last date for admissions was extended by them to 28/04/2022 by a notification. State is now saying that we flip those and now whatever has happened cant be reverted back."
Following this, it was the contention of the counsel for the State of Kerala that out of the 38 petitioners who claimed admissions as NRI, seven candidates were in the NRI category list which was originally published by the CCE on 31 January 2022. As for the rest, the State submitted that (i) twelve candidates lacked proper documentation; and (ii) nineteen candidates had not claimed NRI status.
As regards the seven candidates, who were in the original list of NRI candidates, Mr Jaideep Gupta, senior counsel appearing for the respondents stated that though four of them had registered their options for NRI seats in self-financing colleges, they did not furnish their options for the mop up round after the issuance of the notification dated 26 March 2022.
Referring to this, the counsel for the State, Mr Gupta submitted, "If they wanted to register for a mop up round they had to register fresh and none of them registered for the fresh mop up. We have to give fresh options for mop up and that is why fresh payment has to be made. These 4 persons who were in the list had not exercised their option in the mop up counseling. 2nd phase allotment also confirms that online option confirmation is mandatory, otherwise the counselor does not know that you are still in the list. They have to register their option for a particular college. None had given any option in the NRI seats in the mop up round and it was flipped only because at that stage, otherwise the seat would go to waste. Those who did not make it fell into 2 categories, 12 who did not have documents & 19 who did not claim seats at any stage. As far as they are concerned, the association wanted us to reopen the process altogether to bring them in line and this was done long after the date of doing so was over."
Responding to this, the bench said to the counsel for the petitioner Senior Advocate Ahmadi,
"We followed your whole line of argument that these 7 were registered & were in the list and the option list contained both the potions but the prob arises much later because out of the 38, 7 came in the list and out of those 7 4 registered their options in self financing colleges initially but they did not register for mip up now & we have nothing to doubt the veracity for what they are saying.""One petitioner uploaded on March 28- they are not in the wrong place," counsel Ahmadi stated in his submission.
Responding to this, the counsel for the State, Mr. Gupta replied, "This can be uploaded at any stage but if its for that college or not, let me check up. They did not apply at Mop Up stage for this college. I'll check."
Therefore, the bench directed the State of Kerala to carry out fresh verification and noted,
"In order to ensure that a proper verification is carried out, we request Mr Jaideep Gupta, senior counsel to ensure that a fresh exercise of verification is carried out in regard to the status of these candidates who claimed as NRI candidates and to place the result of verification on the record in the form of an affidavit. The affidavit shall be exchanged on or before the next date of listing.""We are impressed with your submissions that if you didn't flip these, the same could have gone to waste. File a short affidavit and annex the same. Come back with us on Wednesday," added the bench as it listed the matter for further hearing on May 4.
To read the top court order, click on the link below.
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