NEET 2020: SC Relief to BDS aspirants, lowers admission cutoff by 10 percentile

Following this judgment, the cut-off marks for getting admission to BDS Course would be 40 percentile for General candidates, 30 percentile for SC/ST/OBC candidates, and 35 percentile for General candidates with benchmark disabilities specified under the Rights of Persons with Disabilities Act, 2016.

Giving direction to the authorities to complete the admission process within 18.02.2021, the apex court bench of Justices L. Nageswara Rao and Krishna Murari has further clarified that the qualified students, without the lowering of the marks, if they are willing to participate in the admission process would be eligible for admission to BDS courses as well.

The direction of the apex court comes after Harshit Agarwal along with some other students (participants in the National Eligibility-cumEntrance Test (NEET) examination 2020 for admission to the first year of BDS conducted on 13-09-2020) filed a petition before the court as they hadn't obtained the minimum marks prescribed, for BDS admission, by Sub-Regulation (ii) of Regulation II of the Dental Council of India, Revised BDS Course Regulations, 2007.

The petition had been heard along with the petition filed by the Dental Colleges from the State of Andhra Pradesh. Both the petitions sought direction for lowering the minimum cut off marks necessary for admission to BDS courses.

The students, petitioners approached the Dental Council of India (DCI). Following this, DCI recommended lowering the cut-off percentile for admission to the BDS course for the academic year 2020-2021.

Based on the recommendation by DCI, the petitioners submitted a representation to the Centre, and sought to lower the qualifying cut off percentile on the recommendation of the Executive Committee of DCI.

However, the centre hadn't accepted the recommendation of the Executive Committee. Finding no other alternative, the students approached the apex court and filed the petition under Article 32 of the Constitution of India.

On the other hand, the Andhra Pradesh Dental Colleges, in their petition, sought a similar direction to lower the minimum cut off marks for BDS admission by 20 percentile in each category based on the recommendation of DCI.

Mr. Maninder Singh, learned Senior Counsel, appeared for the colleges and the learned counsel Mr. Krishna Dev Jagarlamudi, appeared for the students. On the other hand, Ms. Aishwarya Bhati, learned Additional Solicitor General appeared for the centre.

The Counsel fo the colleges had submitted that the proviso to Regulation II (5) (ii) of the Regulations empowers the Central Government to lower the minimum marks required for admission to BDS course in consultation with the Dental Council of India. He argued that in spite of the recommendations made by DCI, the Centre hadn't acted upon the recommendations "arbitrarily and unreasonably".

It was further stated that the first respondent accepted the proposal of DCI and lowered the cut off percentile for the year 2019-2020. He also contended that the minimum marks had been lowered for the Super specialty courses for the year 2019-2020 and for admission in Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homeopathy (AYUSH) - UG courses for the year 2020-2021.

Clarifying that the percentile had been different from percentage, the counsel further contended that lowering the percentile wouldn't cause to compromise with the standards. Arguing that 7,000 seats in the first year BDS course had been vacant, he further contended that leaving those seats vacant would result into wasting the available infrastructure.

The counsel for the student, in the same line of argument, contended that "there is no basis for the assumption that lowering of the percentile would affect standards of education." He further argued that there could be no basis for the allegations that the private colleges had been charging exorbitant fees, resulting in vacant seats in the BDS first year.

The counsel appearing for the centre submitted that the centre had taken an informed decision on 30.12.2020 not to lower the minimum marks for admission to dental surgery course for the year 2020-2021 as a sufficient number of candidates had been available.

Contending that for each vacant seat there had been seven available candidates, Ms. Bhati further submitted that 7.71 lakhs candidates had been found to be eligible for filling up 82,000 MBBS and 28,000 BDS course seats.

Highlighting the fact that there had been 2.77 lakh Dentists registered with the Dental Council of India, she argued that the availability of 80% of Dentists had made the ratio in India (1:6080) better than the one recommended by the World Health Organization (WHO) (1: 7500).

She further contended that the actual reason for vacant seats in BDS course had been the candidates giving preference to other streams or their disability to pay an exorbitant fee charged by the private colleges.

The counsel for the colleges, in response to the submissions made by centre argued that admissions to AYUSH courses had also been made from students who had qualified in the NEET examination 2021. He pointed out that the addition of 52780 seats in AYUSH would reduce the ratio of eligible candidates to the seats available in BDS to 1: 4.5.

Meanwhile, the Court mentioned the Sub-Regulation (ii) of Regulation II of the Regulations. It stated, "In order to be eligible for admission to BDS Course for a particular academic year, it shall be necessary for a candidate to obtain a minimum of marks of 50th percentile in 'National Eligibility-cum-Entrance Test to BDS course' held for the said academic year. However, in respect of candidates belonging to Scheduled Castes, Scheduled Tribes, Other Backward Classes, the minimum marks shall be at 40th percentile. In respect of candidates with locomotory disability of lower amendments, the minimum marks shall be at the 45th percentile. The percentile shall be determined on the basis of the highest marks secured in the All-India common merit list in "National Eligibility-cum-Entrance Test for admission to the BDS course. Provided when sufficient number of candidates in the respective categories fail to secure minimum marks as prescribed in the National Eligibility-cum-Entrance Test held for any academic year for admission to BDS Course, the Central Government in consultation with the Dental Council of India may at its discretion lower the minimum marks required for admission to BDS Course for candidates belonging to respective categories and marks so lowered by the Central Government shall be applicable for the said academic year only"

Thus, the proviso clarifies clearly that the Central Government has the discretion to lower the minimum marks required for admission to BDS course in consultation with the Dental Council of India when sufficient number of candidates in the respective categories fail to secure minimum marks in the NEET entrance test.

The court observed that there had been no dispute that on 06-09-2019 the first Respondent lowered the qualifying cut off percentile for NEET (UG) 2019 for admission to BDS course by 10.00 percentile for each category i.e. General, SC/ST/OBC, and persons with locomotor disability of lower limbs.

DCI, in a letter dated 28.12.2020 proposed that the percentile for admission to BDS course in Dental colleges should be lowered by 20 percentile for each category, had stated that only 7,71,500 students qualified for admission to MBBS/BDS, (UG) AYUSH, and other UG medical courses for the year 2020-2021.

DCI further clarified that the students qualified had not been commensurate with the sanctioned admission capacity in different courses like MBBS, BDS, (UG) AYUSH, and other UG medical courses. However, the Centre had taken the decision to not lowering the minimum marks required for admission to the BDS course.

Mentioning that "Judicial review of administrative action is permissible on grounds of illegality, irrationality, and procedural impropriety", the apex court argued that an administrative decision would be called flawed if "it is illegal".

The Court further clarified that a decision would be illegal "if it pursues an objective other than that for which the power to make the decision was conferred."

In this regard, the apex court had referred to R. vs. St. Pancras Vestry 3 in which it was held, "If people who have to exercise a public duty by exercising their discretion take into account maters which the Courts consider not to be proper for the exercise of their discretion, then in the eye of law they have not exercised their discretion".

The Supreme Court further observed that the "Central Government cannot pursue any purpose other than the one specified in the proviso to Regulation II (5) (ii)."

While looking at the three reasons given for the decision not to lower minimum marks, the Court observed that the calculation of the first Respondent for the eligible candidates for every available seat had been faulty as it hadn't taken into account the fact that NEET (UG) 2020 is conducted for admission into different courses like MBBS, BDS, UG AYUSH and other medical courses.

After taking into account all the facts, the Court observed that "total number of seats available for the academic year 2020-2021 for MBBS are 91,367, BDS are 26,949 and AYUSH are 52,720 making it a total of 1,71,036 seats. Whereas, the NEET qualified candidates are 7,71,500. The ratio of seats available vis-à-vis eligible students is 1 : 4.5 and not 7."

In this respect, the court observed that "the decision which materially suffers from the blemish of overlooking or ignoring, wilfully or otherwise, vital facts."

The court further observed

"the decision of the first respondent was propelled by extraneous considerations like sufficient number of Dentists being available in the country and the reasons for which students were not inclined to get admitted to BDS course which remits in the decision being unreasonable."

The apex court further mentioned that "while arriving at a decision on 30.12.2020 not to lower the minimum marks it does not appear that the first Respondent has consulted the second Respondent in accordance with the proviso to Sub-Regulation (ii) of the Regulation II."

Mentioning that the Centre had reduced cut off marks for the admission to super specialty courses, the court opined

"If reducing minimum marks amounts to lowering the standards, the first Respondent would not do so for super specialty courses. We are in agreement with Mr. Maninder Singh learned Senior Counsel for the Petitioners that lowering the minimum marks and reducing percentile for admission to the first-year BDS course would not amount to lowering the standards of education."

The court had not been impressed by the argument that having a sufficient number of dentists available in the country wouldn't harm in the seats being unfilled. However, the court mentioned that only 265 out of 7,000 seats had been vacant in government colleges. The rest of the seats had been in the Private colleges. Thus the court found "force in the submission made by the learned Additional Solicitor General that the fee charged by the private dental colleges is a deterrent for the seats not being filled up."

Based on this, the court opined that the "Managements of private Dental Colleges shall consider reducing the fee charged by them to encourage students to join the Colleges.""

The court addressed submission made by the centre that as per an order passed by the Court in Union of India v. Federation of Self-Financed Ayurvedic Colleges, Punjab, (2020) SCC 115, which had stated that "non-availability of eligible candidates for admission to AYUSH (UG) courses cannot be a reason to lower the standards prescribed by the Central Council for admission." However, the Court opined that "facts of this case are entirely different as the Dental Council of India itself recommended for lowering the minimum marks and the Regulations provide for lowering the minimum marks."

Based on all these arguments the apex court had set aside the decision of the Centre not lowering the marks s for admission to BDS course as "s it suffers from the vices of illegality and irrationality."

The apex court judgment stated,

"We direct that the vacant seats in first year BDS course for the year 2020-2021 shall be filled up from the candidates who have participated in the NEET (UG) courses for the year 2020-2021 after lowering the percentile mark by 10 percentile. The candidates belonging to the general category who have secured 40 percentile shall be eligible to be considered for admission in the first year BDS course for the year 2020-2021. Likewise, students belonging to the SC/ST/OBC categories shall be qualified if they have secured 30 percentile. In so far as General candidates with benchmark disabilities specified under the Rights of Persons with Disabilities Act, 2016, they would be eligible if they have secured 35 percentile. The admissions shall be made strictly in accordance with merit and the admission process shall be completed by 18.02.2021. Any other student who has qualified in NEET (UG) - 2020 even without lowering the minimum marks and is willing to participate in the admission process shall also be considered for admission to BDS course."