Relief: Supreme Court allows NEET 2021, NEET PG 2021 counselling with existing quota, to take final call for next year

Further the bench the petition for final hearing for determine the validity of EWS criteria as determined by the Pandey Committee in the 3rd week of March, 2022.

The bench had heard extensive arguments made by Senior Advocate Shyam Divan, Arvind P Datar appearing for the petitioners and P Wilson, Solicitor General of India Tushar Mehta, Additional Solicitor General of India KM Nataraj and few intervenors in the case for two days.

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. The top court had expedited the hearing and called the bench for deliberation today.

The Supreme 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).

Recently, the Matter finally came up 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.

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 had 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.

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.

Advocate Divan had said postgraduate medical admission should be merit-based and reservation should be minimal.

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 had added.

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 had said.

During the hearing yesterday, the Advocate Datar, submitting that Rs 8 lakh criteria is a top down approach and not a bottom up approach, had said, "BPL population in General category was higher in some states than others. BPL is an expenditure based statistics. The committee goes into determination of poverty. BPL can be a factor. It can be nutritional value but final they settled at income. Emphasis was put on caste based survey to understand the distribution. They say there must be a bottom up approach."

Further seeking expedition of the NEET PG Counselling, Advocate Dave, representing resident doctors who had gone on strike had contended before the bench, "45000 doctors are inducted as PG doctor's every year in medical workforce. This year because of the pandemic exam happened late, only 2nd and 3rd year residents are there because 1st years have not joined. The counselling had to start immediately because 3rd year residents are about to pass out in 4 months. We'll be left with 33% of workforce. With 3rd wave coming we need doctors. The 8L or 5L limit can be looked at later."

Responding to all arguments laid by petitioners counsels, Solicitor General had argued, "The submission of the petitioner that OBC reservation is per se unconstitutional as canvassed by Mr. Diwan is not legally sustainable submission and the judgment he relied on does not state this. The Pandey committee report- eventually the submission would be unless it is grossly unfair and no man with common sense would reach this conclusion.
"The information brochure was published on February 23. My first submission is the rules of game start from this date. Last date of registration was March 15. Scheduled exam was in March. It was postponed. Date for release of booklet counselling in July 29. The information brochure says that the reservation will be applicable as per the norms of the government. What will be applicable reservation will be informed at the counselling. When I appear for an exam, my performance is not based on applicable reservation. I have to give the best. I can't say since there is 10% reservation, I can perform slightly less," he stated.
"This sentence implies that you can have valid reservation up to PG level. The last sentence seems to indicate that", Justice Chandrachud.

Stressing the fact that exam is related to counselling not reservation, the SG then said, "There are two submissions with respect to rules of the game. The game started with effect from Feb 2021 when the notification issued said reservation will be announced later…. The candidates who had registered for counselling have already got their certificates with respect to EWS and have filed it with counselling centre as per previous regime. There will not be any hardship to anyon."

Adding the seats have been increased corresponding to EWS quota, the SG said, "When 103rd amendment came- EWS class was added, the government took a decision that in all medical colleges, let us increase the seats by 25%.... Wherever EWS students will be accommodated would not harm the other candidates as the 25% increase was made for them. Mr. Datar said it's unconstitutional. Art 15(5) itself provides for it."

It was submitted the criteria for determination of EWS category was arrived at after due deliberation by Ministry of Social Justice and Empowerment.

From the common sense perspective, is Rs 8 lakhs reasonable is the question. Rs 8 lakh is about Rs 70,000 per month. We are not in the exercise to find who is poor. The Constitution uses the word "economically weaker section". Whether economically weaker meritorius students can compete with other students, afford tuition etc, are the considerations, the counsel had said.

Further noting that this committee attempted to justify EWS criteria post-facto, the bench had stated, "From the first affidavit you say you decided to follow the creamy layer criterion. Now in the Pandey committee report, you say EWS is a stricter criteria. One area where we need to explain is, today's income tax limit is 2.5 lakhs. Up to 5 lakhs, you don't have to pay any tax because you get a rebate. So no income tax effectively till 5 lakhs."

ASG KM Nataraj had further submitted that when PG courses were discussed, a certain percentage maybe reserved for institutional preference. "The government was obliged to holding all India examination and it was observed. Government submitted a scheme as to how reservation should be provided. It won't be right for us to limit the reservation that states can make to 50% in MBBS, BDS and PG courses. In Budhi Prakash Sharma, there was some ambiguity so in 2007 clarification was sought. 50% to be filled by all India examination includes reservation. Reservation is provided by the court, the extent has to be decided by it and not government."

Pointing towards the urgent need to expedite the PG medical admissions, the Adv. Shyam Divan, had said," My submission is with these dates available to the court and that the impugned notification. We are not dealing with a handful of seats we are dealing with 2500 seats. As far as NEET MDS is concerned there is no problem. It's 33.4 on the list… The court is saying look 50% all India quota keep it in general category. I have appeared for my PG exam today, and I believe my rights are being violated and putting me at a tremendous disadvantage."

Advocate Datar further urging to keep EWS criteria at 2.5 lakhs in the alternative had stated, "Seats are going to EWS which is not a defined category. It can have huge effect of PG candidates' life. The 8L and all is without any kind of data whatsoever. After deliberation Sinho Committee said 2.5L and gave a formula, nobody questioned it.."

Meanwhile, the Federation of Resident Doctors Association, FORDA, which was a party in the case, thanked all the resident doctors for showing solidarity in agitation called by the association demanding expedition of the NEET PG Counselling 2021. In its statement, the association said, "FORDA is thankful to all RDAs as well as every Resident Doctor, IMA, DMA, Media personnel, Political party & Citizen of the nation who came forward, supported & joined this agitation for rejuvenating the healthcare sector with adequate workforce of Resident Doctors amidst the 3rd wave of COVID-19 Pandemic. We are also thankful to the Hon'ble Supreme Court & MoHFW for taking note of the grievance of Resident Doctors. As earlier, as an association of Resident Doctors who are working at ground level, FORDA will keep on raising the issues faced by Resident Doctors & will strive to improve the healthcare sector of the nation."

Further urging the government to immediately release the NEET PG Counselling Schedule so that the healthcare workforce and medical associations can focus on patient care and on tackling COVID cases, the Federation of All India Medical Association (FAIMA) has stated, "The counselling cannot be delayed further as we may be reaching the peak in less than a month, and we shall require adequate manpower to handle the huge number of cases in the country."