NEET SS 50 per cent In-service Reservation: Supreme Court Reserves Interim order

The order was reserved by the bench after it heard at length all the submissions made by all the parties- the petitioner doctors, Union Government, Tamil Nadu Government, and other doctors.

Medical Dialogues has been reporting about the matter of whether 50 per cent reservation to government doctors and in-service candidates in PostGraduate medical (PG medical) and super-speciality courses should be allowed. The issue emerged after the state of Tamil Nadu, on November 7, 2020, had allocated 50 per cent of postgraduate super-specialty seats in government medical colleges to in-service government doctors from the academic year 2020-2021.

While considering the matter, the Madras High Court recently directed the Government to allocate 50 per cent of super-specialty seats in DM/Mch courses in government medical colleges to in-service doctors in Tamil Nadu for the current academic year 2021-2022. Consequently, the matter came to be challenged before the Apex court. As a result, even though the NEET-SS 2021 examination was conducted on January 10, 2022 and results were published on January 31, the counselling process is yet to begin.

Also Read: NEET SS 2021: 50 percent Reservation for In-Service doctors challenged, Supreme Court issues notice

As per the latest media report by Live Law, during the latest hearing regarding the matter, the Senior Advocate, Mr. Dushyant Dave, appearing on behalf of one of the petitioners, submitted before the court that the concerned G.O had been issued without any authority and it was completely unconstitutional.

At this outset, he referred to the NEET-SS Bulletin for the academic year 2020-2021 and 2021-2022. These Bulletins clearly mention that there shall not be any separate entrance for admission to DM/MCh courses and regarding reservation of seats, Clause 10.10 mentions, "As per judgment of the Constitution Bench of Supreme Court of India Writ Petition (C) No. 350 of 1998, there is no reservation of seats for super specialty DM/M.Ch. courses."

Referring to the fact that the G.O was issued by the Tamil Nadu Government on 07.11.2020, Advocate Dave further submitted that the rationale behind issuing the G.O could largely be the decision of the top court in Tamil Nadu Medical Officers Association v. Union of India (2021), wherein the top court had upheld the power of States acting under Entry 25 List III to enact special provisions for in-service doctors in medical courses including PG courses.

However, pointing out that the said judgment was limited only to PG courses, Advocate Dave submitted, "It singularly relies on the judgment of the Constitutional Bench without understanding. Because that judgment was with respect to Post-Graduate."

At this outset, the bench directed him to precisely argue on the issue of interim order and consequently, the counsel for the petitioner referred to relevant portions from the interim order passed in the case of Dr. Prerit Sharma And Ors. v. Dr. Billu B.S. And Ors. regarding reservation in Super Specialty courses.

In that order, it had been reiterated by the Supreme Court that "there can be no reservation in Super Specialty Courses and that the Constitution Bench was only concerned with the postgraduate courses in Tamil Nadu Medical Officers Association v. Union of India (Supra)."

The top court while denying to give a nod for in-service reservation last year, had further mentioned in that order that there would be a reduction of 50% of seats in Super Specialty courses in Tamil Nadu if the Government order is carried out and had held that it would be "detrimental to their chances of admission."

Referring to this, the counsel for the petitioner Advocate Dave pointed out that while passing that interim order last year, the top court had extensively considered all the issues. Pointing out that the petitioner's case was covered by four Constitution Bench judgments, the counsel for the petitioner further urged the court to extend the same for the present academic year.

However, the bench noted that the interim order for the previous order was mainly based on the fact that the reservation policy had been announced much later and at the time of admission, the candidates were expecting that there would be no reservation.

"In the meanwhile there is judgment of the Madras High Court upholding the G.O against which an SLP is filed… There is subsequent development. At that point in time we had passed the interim order because everybody was informed that there would be no reservation for that year. So, introducing reservation at a late stage was not permissible is what we said," noted the bench.

Another counsel for the petitioners Senior Advocate Shyam Divan relied on the Clause 10.10 of the latest NEET-SS Bulletin and pointed out that the law is in favour of the petitioners. "This has been the settled law, right through. Super Speciality ought not to be mixed up with PG… We request that an interim order would be entirely consistent with the previous Constitution Bench judgments."

Referring to the Bulletin and the Madras HC order in Dr. D. Suresh (supra), another advocate for the petitioners, Mr. Gopal Sankaranarayanan was quoted submitting by Live Law, "The judgment of Madras High Court referred to now, that is those which in-service filed a petition seeking clarity on whether the G.O. will apply. The court in its concluding paragraph says that if there are no obstacles it may be implemented. In my view the obstacle is the NEET Bulletin."

He also referred to the judgment in Preeti Srivastava and Another v. State of M.P. and Others, where it had been reiterated at the level of super-specialty courses, merit alone can be the basis for selection.

Additional Solicitor General, Ms. Aishwarya Bhati appeared for the Union Government and also opposed the reservation and submitted, "The Union has also filed an application seeking continuation of stay for this year also. The only mode of entrance in the Super Specialty courses is through a common central entrance test… Since NEET-SS 2017 there has been no reservation in Super Speciality. The institutions that are offering super speciality are not heterogeneous across the country, it is not like the State of Tamil Nadu, State of Assam etc. can be compared. There are few institutes. Therefore, if the State restricts entry in any manner it is going to be detrimental to national interest."

"We are already running late. We had changed the curriculum, which was challenged. We made an undertaking that we will revert back to the previous curriculum for this year. This is for the course of 2021-2022. Results were announced on 31.01.2022. We are at the fag end. We are waiting for your lordships' clarity on how to proceed," she added referring to the continuous delay in the counselling process.

On the other hand, Tamil Nadu Government was represented by Senior Advocate Mr. C.S. Vaidyanathan, who referred to the Apex Court judgment in Tamil Nadu Medical Officers Association (supra) and submitted, "Why did the Government make this provision? The in-service candidates who are serving the State; they are not mercenaries like the petitioners who want to get a super speciality course and want to go abroad and practice. They have been serving the common man in the State. The wholesome object has been appreciated by a Constitution Bench of this Court."

"And the Medical Council of India which is a statutory body has not even taken into account the Constitution Bench judgment while formulating paragraph 10.10," he further pointed out.

Expressing concern that those opposing the reservation are those who abandon their duties towards the State after admission, he further mentioned, "Who are the people who are coming before your lordships asserting their rights. They have no equity. I have the data…how they have all taken admission, undergone the course and deserted. They have never kept their undertaking to serve in the State or in hospitals in rural areas."

"This is not a reservation. These are people who are already serving in the Govt. hospitals. It is a separate source of filling up vacancies," he urged.

When the bench referred to the judgment in Preeti Srivastava (Supra), which mentions no reservation in Super Speciality, Mr. Vaidyanathan contended, "Preeti Srivastava was concerned neither with in-service candidates nor with admission. It was concerned with relaxation of marks for reserved categories. It was not concerned with quota at all."

At this outset, the bench opined that "ultimately it is a reservation, is it not?" Responding to this, the counsel referred to the fact that "in the Constitutional Bench judgment, the question was asked whether it is reservation and the Court said no it is not."

However, the bench differed in opinion and observed, "The Constitution Bench did not say that it is not reservation. What the Constitution Bench is saying is this reservation for in-service doctors is not akin to reservation made on communal basis. To that extent you might be right."

"But, this Constitution Bench only refers to PG courses according to the petitioner. How do you deal with that?" asked the bench.

Referring to Tamil Nadu Medical Officer Association (supra), the counsel argued that when the power to provide for reservation was taken away by the above-mentioned judgment, NMC could not have come up with Clause 10.10 in the fresh notification.

"When they issued the fresh notification after this power was held to be not available to them, MCI could not have issued paragraph 10.10," he argued.

Further pointing out that the last year's interim order was only limited to the academic year of 2020-2021, the counsel Mr. Vaidyanathan concluded by saying that "Kindly see in the counter affidavit we have a huge number of vacancies in the State. We need people to man the post. This is not a case where an interim order is to be passed. Under the knowledge of G.O. they participated, they were aware of it."

When Advocate Amit Anand Tiwari pointed out that the Union Government also had similar provisions for in-service candidates, which refers to as sponsorship, the bench noted, "This is not for NEET. This is for All India Institute of Medical Sciences admission. These are Super Speciality courses in institutes of national importance. These are separate examinations."

At this outset, the advocate pointed out that such special provisions for in-service doctors serve special provisions for in-service candidates serve a larger purpose and submitted, "Kindly see what non service candidates in the last four years have done. 73% have not even complied with bond conditions. 75% in the second year. Those who have completed, 92% go away after 2 years. How will I sustain my institution, my hospitals?"

After considering the submissions, the bench reserved the interim order.