Bombay HC orders UT, Medical College to create extra MBBS seat for highly meritorious candidate

The institute had been further asked to take immediate steps to create one additional MBBS seat so that the admission of another student, who has secured the lowest marks in the NEET-2020 (414 marks) and is the lowest in merit, stands protected in the light of the principles as laid down by the Supreme Court in S.Krishna Sardha vs. The State of Andhra Pradesh.

The Chief Justice had added in the judgment, "It is rather painful when a candidate scoring as low as 219 marks in the NEET, 2020 obtains an admission in the MBBS course because of a quota for the Coast Guards (with which I have no qualm) whereas a candidate like the petitioner, scoring as high as 559 marks in the same qualifying examination, is left high and dry and suffers for no fault on her part compelling her to seek judicial intervention."

This comes after a meritorious student belonging to Dadra & Nagar Haveli had failed to secure admission in the NAMO Medical Education & Research Institute despite securing 559 marks in the NEET-2020 examination. The student had approached the HC after failing to get admission despite securing such a high NEET percentile (96.8418581).

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The petitioner student, in her plea before the HC had mentioned that she had satisfied the eligibility criteria except for Clause 4(a) providing for the First Priority stipulating that the student should have studied from Standard VIII to Standard XII in a school within the Territory of Dadra and Nagar Haveli in as much as although the petitioner studied from Standard I to X in Kendriya Vidyalaya, Silvassa, Dadra and Nagar Haveli, she undertook XI and XII standard course from Gurukul International School, Banthod in the State of Rajasthan, which was affiliated with the Central Board of Secondary Education.

The petitioner student had contended that although she had a very high score in NEET by securing 559 marks, she would not fall in the First Priority and would have to be considered in the Second Priority provided seats would available after the First Priority candidates are exhausted as per Clause 4(a). 

However, the petitioner student had participated in the admission process of the NAMO institute and on 12th October 2020, a provisional merit list for Dadra and Nagar Haveli in the Priority I (common merit list) and a provisional merit list for Dadra and Nagar Haveli in Priority II (common merit list) came to be published. In that merit list, the petitioner student had stood at Sr. No. 1 in Priority II (common merit list). 

In her plea, the petitioner student had pointed out that out of the total quota of 177 seats available to be filled up by the Institute, 15% of seats (22 in number) were to be filled up from the All India Quota. Out of such 15% seats, 4 seats remained vacant and came to be repatriated to be filled up by Institute on 9th December 2020.

She further mentioned that as there had been no specific rules to fill up the 4 reverted All India Quota seats the criteria of merit should be considered in such a situation. The counsel appearing for the candidates then submitted that the rule of priorities, as contained in Clause 4 would not be applicable in that case.

The student had thus pleaded before the High Court for a direction to the Union Territory of Dadra and Nagar Haveli and Daman and Diu Administration Department, the Secretary, Education, Director of Health Medical and Health Services and the Dean of the medical college that the mop-up provisional allocation of seats to Dadra and Nagar Haveli dated 4th January 2021, under which the Priority criteria in Clause 4(a) applied for the said 4 seats, as reverted from the All India Quota, be held to be illegal and be quashed.

It had been also stated on the behalf of the petitioner that since the year 1984 i.e. for last more than 35 years, the position in law had been well settled right from the decision of the Supreme Court in Pradeep Jain vs. Union of India reported in (1984) 3 SCC 654, that selection of students for admission to the medical colleges had to be only on merit and when more meritorious students were available, simply because there had been students who were permanent residents or residents for a certain number of years in the State, there ought not to be an exclusion of more meritorious students.

The counsel for the petitioner student had also contended that respondent nos. 5 to 8 had been candidates who were far too less meritorious than the petitioner and who had been admitted by the institute on such reverted seats, by applying the rules applicable to 85% admissions when the only rule of merit ought to have been applied for making admissions to such four seats.

On the other hand, the Dean of the Institute had filed a reply affidavit to contend that the policy of priority, as prescribed in Clause 4 of the admission brochure had been legal and valid and had also been recognized by the Bombay HC in its decision in the case of Ms. Vinita Umesh Singh vs. The Administrator, Dadra & Nagar Haveli, Daman & Diu Secretariat (Writ Petition Stamp No. 96105 of 2020).

"Once the reverted seat are reverted back to the State quota, then its allocation has to be done only on the basis of the Admission Policy and Admission Criteria adopted by the State" mentioned the reply affidavit.

Meanwhile, the other students who had secured admission in those 4 reverted seats had also filed their reply affidavits at the Bombay High Court. They had contended that they qualified and fulfilled the criteria in clause 3 and 4 of the admission prospectus falling in the first priority. It is contended that their names appeared in the Mop-Up provisional allocation of seats as notified on 31st December 2020 and were allotted provisional admission letter for admission to MBBS course for the academic year 2020- 2021 as also they have submitted original documents and have paid fees of Rs.35,100/-.

After listening to all the arguments by all the parties, the HC bench had observed that the matter of consideration had been as to whether the regular criteria for making admissions to the State quota, namely, to the 85% seats, could at all be applied, in the present circumstances, to fill up the 4 seats reverted from the All India Quota and not the criteria of pure merit of the candidates, who would be available for admission.

The HC bench had taken note of the eligibility criteria, minimum qualifying standard prescribed for HSC or equivalent examination, priority in admission, the provisional merit list in Priority I and Priority II which was notified on 10^th December 2020, the petitioner's position in the provisional merit list in Priority II, and the number of reverted seats from the All India Quota.

While addressing the 4 reverted seats in question the HC bench had also noted that from a perusal of the reply affidavits filed on behalf of the institute, it had appeared to be quite clear that there had been no specific rules provided in the admission brochure to deal with such an unforeseen and/or fortuitous circumstance of the seats having reverted from All India Quota.

The HC bench had referred to the Sub Clause (v) of Regulation 5(5) of "Regulations on Graduate Medical Education, 1997" as notified by the erstwhile Medical Council of India (MCI), now National Medical Commission (NMC). It had mentioned, "(V). All admissions to MBBS course within the respective categories shall be based solely on marks obtained in the National Eligibilitycum-Entrance Test."

Thus, the HC bench had opined that "in absence of any rules being framed by the institute for making admissions to the seats reverted from the 15% All India seats, in our opinion, to grant admissions sacrificing such highly meritorious candidate like the petitioner, would amount to a wholesome arbitrariness."

"It is a travesty that by such method, the petitioner, who performed so well and worked so hard to secure such high marks (559) in the NEET which is a score more than 145 marks above the last candidate (respondent no.8), has been denied admission by operating the normal rule of admission to such 4 seats, which, in our considered opinion, certainly could not have been applied for the four reverted seats," observed the Court.

The Court had also referred to the latest judgment by the Supreme Court dated 24.02.2021 in Saraswati Educational Charitable Trust and Anr. vs. Union of India and Ors., (Writ Petition (C) No. 40 of 2018). The Apex Court, in that case, had observed, "Regulation 5 A of the Regulations provides for counselling for admission to MBBS course in all medical educational institutions on the basis of merit list of NEET. According to the said Regulations, no admission can be made by the Petitioner-College on its own."

However, the court had also noted that this particular case had been peculiar in nature and in that particular situation, the interest of justice would imminently require that the petitioner student would secure her admission without disturbing the admissions of the other students who had been granted admission by the institute. As those students had been admitted by the institute, although overlooking the merit criteria, they couldn't be faulted with for that reason.

"The admission process, in my view, suffers from a serious taint and if such a tainted admission process is saved, the rule of merit would be compromised, which, in turn, would frustrate the labour of meritorious students like the petitioner, apart from development in them of a sense of aversion to the concept of qualifying examinations," CJ Datta said.

"This is indeed an exceptional case where commencement of classes notwithstanding, the petitioner is still entitled to claim admission in the MBBS course upon creation of an additional seat in the relevant college," the chief justice held.

Thus, the Bombay High Court bench in its judgment had held,

"(i) Respondent no.1 to 4 (the authorities) are directed to forthwith admit the petitioner to the First Year MBBS Course for the academic year 2020-2021, on one of the 4 reverted seats from the 15% All India Quota.

(ii) Respondent No 1 to 4 are directed to take immediate steps to create one additional seat so that the admission of respondent no.8 (candidate), who has secured the lowest marks in the NEET-2020 (414 marks) and being the lowest in merit stands protected in the light of the principles as laid down by the Supreme Court in S.Krishna Sardha vs. The State of Andhra Pradesh(supra).

(iii) Admission of respondent No.8 shall be treated as provisional till such time the additional seat is created."

While concurring with the decision of Justice Kulkarni, the CJ said:

"In the class-ridden society that we live in, 'social justice' should mean justice for the weaker and poorer sections of society, particularly when we have also resolved in the Preamble to secure 'equality of status and opportunity' and securing justice to the weaker and the poorer section could make them equal with the rest of the society."

"In a given case such as the present, where it is neither black nor white but a grey area, to rise to the challenge for 'social justice', whenever the weaker or poorer section faces a combat against the stronger or richer section, the courts ought to lean in favour of the former so that 'social justice', i.e., justice to the weaker or poorer section of the society is ensured," the judge observed.

Chief Justice in the end had further referred to the challenging circumstances of COVID-19 in the past year and how it had taken away from the society a number of reputed doctors. He had observed,

"If meritorious students desirous of becoming doctors are not encouraged in such challenging times, it would amount to a grave disservice to the society. Our resolve to render social justice would be a distant dream, if interference in this case were declined. Dislodging a candidate to accommodate the petitioner was one of the options open but considering that the respondents 5 to 8 are not at fault, it was decided not to dislodge any of them but to make a direction of the nature permitted in S. Krishna Sradha (supra). This is indeed a rare and exceptional case where commencement of classes notwithstanding, the petitioner is still entitled to claim admission in the MBBS course in one of the reverted seats through the window of 'a month' kept open by the Supreme Court in its decision in S. Krishna Sradha (supra), upon creation of an additional seat in the relevant college for the respondent no.8."