NEET PG Counselling matter Deferred in Supreme Court

New Delhi: The hearing on the matter of EWS and OBC Quota in NEET and NEET PG AIQ admissions has been deferred as the Supreme Court has adjourned the case till tomorrow.

According to media accounts, the matter was heard by a Special Bench led by Justice DY Chandrachud along with a bench of Chief Justice of India, CJI N V Ramana and Justices Surya Kant and Hima Kohli. The hearing started at around 3 pm and was wrapped up while the presentations were still being made. The matter would be heard again tomorrow, tentatively by 2 pm.

Medical Dialogues had been reporting about the delay in NEET PG counselling which has kept the admission process in limbo. The case was originally slated for hearing on January 6. However, resident doctors have been protesting in Delhi seeking an early hearing, since the NEET PG counselling has been put on hold due to the pending matter. Yesterday, the top court had expedited the hearing and called the bench for deliberation today.

The top court was moved by a batch of pleas challenging the Centre and Medical Counselling Committee's (MCC) July 29th dated notification providing 27 per cent reservation for OBC and 10 per cent for EWS category for PG Medical admissions via NEET PG Counselling 2021.

Even though the counselling in the 50 percent AIQ seats was set to commence from October 25, 2021, after the OBC and EWS reservation policy that was announced by the Central Government was questioned, the MCC had postponed the counselling dates.

The Central Government had assured the top court that till the matter concerning EWS quota gets resolved, no NEET PG counselling would be held. The bench of judges, including Justice DY Chandrachud and BV Nagarathna, had noted Centre's assurance and recorded that if the counselling process starts before the court takes a decision, the "students will be in a serious problem".

The matter got deferred to January as the Central Government decided to revisit the Rs 8 lakh annual income limit set for determining the Economically Weaker Sections (EWS).

During the hearing today, the Matter finally came up after lunch where the Solicitor General began with the acknowledgement that based on the Supreme Court's direction to evaluate the EWS criteria limits, a committee consisting of  Former Finance Secretary, GOI Member Secretary and Principal Economic Advisor was formed that gave its recommendations

Taking cue from these,  Central Government in an affidavit filed on December 31, 2021, informed the Supreme Court that it has accepted the recommendations of the Committee for revisiting the Criteria Of The Economically Weaker Sections (EWS) Reservation. The Centre pointed out that the Expert Committee has recommended for retaining the annual income criteria of Rs 8 lakhs, taking note of the fact that changing the criteria midway would complicate the matter. However, the committee also recommended that families having land of 5 acres or above, irrespective of their income should be excluded further adding that these revisions may be applied from the next academic year. Apart from these, the Expert Committee made its recommendations for the removal of criteria regarding residential assets. These revisions in the criteria should be introduced from the next academic year, the Committee had suggested. 

Under these circumstances, it is completely unadvisable and impractical to apply the new criteria (which are being recommended in this report) and change the goal post in the midst of the ongoing processes resulting in inevitable delay and avoidable complications. When the existing system is ongoing from 2019, no serious prejudice would be caused if it continues for this year as well. Changing the criteria midway is also bound to result in spate Of litigations In various courts across the country by the people/persons whose eligibility would change suddenly. The Committee, therefore, after analysing the pros and cons on this issue and after giving serious consideration, recommends that the existing and on- going criteria in every on-going process where EWS reservation is available, be continued and the criteria recommended in this Report may be made applicable from next advertisement / admission cycle

This voice was also resonated by Senior Advocate Arvind Datar as well who stated that for this year where exam has already been done, let the old system prevail now. This was not acceptable , there was thereafter a debate in the court regarding the OBC reservations which prompted judges to concur amongst themselves. Justice Chandrachud noted to the solicitor general that on "Nov 25 when you told us that you will revisit the criteria and we had said that the matter will be heard on Jan 6, and you filed your affidavit. We'll have to give opportunity to Mr Datar & Mr Divan ( counsels for petitioners) in brief."

Presenting the case before the top court, the Solicitor General stated, "Now there is a judicial adjudication as far as OBC is concerned. Government is earnestly requesting that we will not accept a position that poorest of poor or OBC is deprived of what is legitimately due to them. They have come to SC now even when notification was out in January 2019."

"Counselling is stuck and its from graduation to post graduation. we need doctors and their concerns are genuine. as a society we cannot go into lengthy arguments now. we said we will revisit and the report has been submitted now," SG Tushar Mehta told the Supreme Court, according to Bar & Bench.

The report needs to be seen in the light of the conscience is whether poorest of poor is covered. Let us proceed with counselling and we can assist the court in great detail. We are in a situation which we did not apprehend. We are responding to the bonafide requests of the resident doctors, the counsel added.

In response, Senior Advocate Arvind Datar said the new system of OBC, EWS should be implemented from the next year. Senior Adv P Wilson objected and said OBC reservation cannot be postponed.

The new reservation scheme in PG medical admissions have taken away over 2,500 general category seats and this should not be implemented in the present admissions, Advocate Divan argued. Senior Advocate Shyam Divan, appearing for the petitioners, referred to the July 29 notification for implementing EWS and OBC quota. He said it is like "changing the rules of the game midway" as the reservation policy was introduced after the exams were notified. "We are saying you cannot change the rules of game when the game has begun," he said.

 "Any change in the current scheme can only be made by this court and neither by the State or central Govt and neither by any HC. Since we are dealing with PG medical courses, this has to be minimal and based on merits," Advocate Divan Said.

Advocate Divan said postgraduate medical admission should be merit-based and reservation should be minimal. "In many courses, postgraduate is the end of the road, and that is the super-speciality in some departments. So the principle regarding super-speciality courses will apply to postgraduate courses too," he said.

When the judge asked to conclude the point on counselling, Advocate Datar said, "There are two difficulties for the counselling. If the counselling is done based on report then our plea is dismissed at the threshold."

Arguing for OBC Quota, advocate Divan stated, "OBC reservation cannot be implemented for this year. This All India Quota can be altered only after making application to this court. Should there be any variation it can only be done after this court orders and not by executive decision"

Rules of the game cannot be changed belatedly. Information brochure for NEET PG was released on Feb 23, 2021 and registration commenced on that date. Last date of registration was March 23, 2021. Rules cannot be changed surely after this. Then it was postponed by 4 months. New date was September 11, 2021. So the new announcement was in July 2021. Impugned notice dated July 29, 2021 was after 5 months exam process began and thus changed rules of game and took away 2,500 seats meant for open category. This case (Pradeep Jain's ) was concerned with regard to domiciliary seats which we have cited. This 50 percent gets cemented by a Constitution bench judgment. An executive order cannot nullify a judgment of this court. This right is recognised and created by this Court which is a facet of Article 14, he added.

In many courses, postgraduate is the end of the road, and that is the super-speciality in some departments. So the principle regarding super-speciality courses will apply to postgraduate courses too. Postgraduate admissions must be completely merit-based and reservation must be minimal. Divan then referred to Supreme Court judgments which hold that there should be no reservation in super-specialty courses, the counsel further stated, as quoted by Livelaw.

Advocate Datar further mentioned that in a span of three says the criteria of 8 lakh was announced for EWS with property criteria. Unlike the backward classes committee where discussions which was held with States and experts, here there was no such discussion undertaken, he said adding that unlike the commissions for OBC reservations, there is no study undertaken for EWS reservations. The present report justified EWS criteria but there was no study undertaken.

"Basis for 8 lakhs is completely arbitrary. Look at what they've said. If a person has got money to make investment in PF's and shares and make savings, he would not be called as EWS. Any person who gets capital gains of 1 lakh from shares, can he be called EWS?" the counsel added, quotes Livelaw.