NEET Update: Supreme Court finds 27 OBC quota just, not at odds with merit

The top court also observed that high scores in an examination are not a proxy for merit and merit should be socially contextualised and re-conceptualised as an instrument that advances social goods like equality.

Such observations came from the Apex Court while it was considering the pleas challenging the Central Government Policy of providing 27 per cent reservation for Other Backward Class (OBC) and 10 per cent for Economically Weaker Section (EWS) category in the All-India Quota (AIQ) seats for medical admission.

Medical Dialogues had earlier reported that this reservation criterion had been challenged before the Supreme Court and due to this, the NEET PG 2021 counselling process had also been deferred. Protesting against the same, the doctors belonging to different parts of India had given a call for strike.

Finally, the matter got resolved in first week of January as in a relief to thousands of NEET PG 2021 candidates, the Supreme Court had given its nod for NEET PG Counselling as per existing criteria for both EWS & OBC. Even though, the top court had upheld the reservation policy, in the order dated January 7, the top court had not given detailed reasons for the order.

"We accept the recommendation of the Pandey Committee to apply the criteria from next year. Counseling shall be conducted by giving effect to the reservation of the OM. Validity of the criteria by Pandey comm would prospectively be subject to the result of the petition in future," the top court had noted in its judgment.

(i) Articles 15(4) and 15 (5) are not an exception to Article 15 (1), which itself sets out the principle of substantive equality (including the recognition of existing inequalities). Thus, Articles 15 (4) and 15 (5) become a restatement of a particular facet of the rule of substantive equality that has been set out in Article 15 (1);

(ii) Merit cannot be reduced to narrow definitions of performance in an open competitive examination which only provides formal equality of opportunity. Competitive examinations assess basic current competency to allocate educational resources but are not reflective of excellence, capabilities and potential of an individual which are also shaped by lived experiences, subsequent training and individual character. Crucially, open competitive examinations do not reflect the social, economic and cultural advantage that accrues to certain classes and contributes to their success in such examinations;

(iii) High scores in an examination are not a proxy for merit. Merit should be socially contextualized and reconceptualized as an instrument that advances social goods like equality that we as a society value. In such a context, reservation is not at odds with merit but furthers its distributive consequences;

(iv) Articles 15 (4) and 15 (5) employ group identification as a method through which substantive equality can be achieved. This may lead to an incongruity where certain individual members of an identified group that is being given reservation may not be backward or individuals belonging to the non-identified group may share certain characteristics of backwardness with members of an identified group. The individual difference may be a result of privilege, fortune, or circumstances but it cannot be used to negate the role of reservation in remedying the structural disadvantage that certain groups suffer;

(v) The scheme of AIQ was devised to allot seats in State-run medical and dental institutions in which students from across the country could compete. The observations in Pradeep Jain(supra) that the AIQ seats must be filled by merit, must be read limited to merit vis-à-vis residence reservation. This Court in Pradeep Jain (supra) did not hold that reservation in AIQ seats is impermissible;

(vi) The Union of India filed an application before this Court in Abhay Nath (supra) placing the policy decision of the Government to provide reservation for the SC and ST categories in the AIQ seats since until then in view of the confusion on demarcation of seat matrix, there was no clarity on whether reservations could be provided in the AIQ seats. The Union Government was not required to seek the permission of this Court before providing reservation in AIQ seats. Therefore, providing reservation in the AIQ seats is a policy decision of the Government, which will be subject to the contours of judicial review similar to every reservation policy;

(vii) It was clarified in Dinesh Kumar (II) (supra) that the total seats demarcated for AIQ shall be determined without excluding reservation as was earlier directed by Pradeep Jain (supra) and clarified in Dinesh Kumar (I). However, this Court in Buddhi Prakash Sharma (supra) had erroneously construed the clarification in Dinesh Kumar (II) to mean that there should be no reservation in AIQ seats. Therefore, the order in Abhay Nath (supra) was only clarificatory in view of the observations in Buddhi Prakash Sharma (supra); and

(viii) Clause 11 of the information bulletin specifies that the reservation applicable to NEET-PG would be notified by the counselling authority before the beginning of the counselling process. Therefore, the candidates while applying for NEET-PG are not provided any information on the distribution of seat matrix. Such information is provided by the counselling authority only before the counselling session is to begin. It thus cannot be argued that the rules of the game were set when the registration for the examination closed.

So, upholding the constitutional validity of OBC reservation in AIQ seats introduced through the notice dated 29 July 2021, the bench dismissed the pleas which had challenged it.

Further, while considering the pleas challenging the constitutional validity of EWS reservation, the bench noted, "The argument of the petitioners on the validity of EWS reservation was not limited to the permissibility of reservation in the AIQ seats. Rather, the petitioners challenged the very criteria for the determination of the EWS, which would not only require us to hear the matter at length but would also entail us to hear all interested parties. However, in view of the delay in the counselling process due to the pendency of this petition, we deem it necessary to allow the counselling session to begin with the existing criteria for theidentification of the EWS category."

Noting that it would not possible for the bench to pass an interim order staying the criteria for determining the EWS category, the Court also observed, "We are still in the midst of the pandemic and any delay in the recruitment of doctors would impact the ability to manage the pandemic. Hence, it is necessary to avoid any further delays in the admission process and allow counselling to begin immediately. As a result, we allow the implementation of EWS reservation in AIQ seats in NEET UG and PG seats for the academic year of 2021-2022."

Observing this, the bench listed the matter for further hearing in the third week of March 2022.