Bombay High Court
Dr.Balaji Gyanoba Phalke And Others vs Union Of India And Others on 23 July, 2013
Author: D.Y.Chandrachud
Bench: D.Y.Chandrachud, S.C.Gupte
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.5063 OF 2013
Dr.Balaji Gyanoba Phalke and others Petitioners
versus
Union of India and others Respondents
Mr.V.M.Thorat with Ms.Puja V. Thorat for Petitioners.
Ms.N.V.Masurkar with Mr.Parag Vyas for Respondent no.1.
Mr.M.S.Bharadwaj for Respondent no.2.
Mr.Samir Patil, AGP for State.
Mr.Varad Deore, Applicant in CA No.1575 of 2013 present.
CORAM : DR.D.Y.CHANDRACHUD AND
S.C.GUPTE, JJ.
DATE : 23 July 2013 JUDGMENT - (PER : DR.D.Y.CHANDRACHUD, J.) :
1. Rule. Learned counsel for the Respondents waive service. By consent, the Rule is made returnable forthwith. The writ petition is taken up for hearing and final disposal, by consent and on the request of learned counsel.
2. The Petitioners before the Court are medical officers employed by the Government of Maharashtra. All of them, as in-service candidates, have applied for admission for postgraduate medical ::: Downloaded on - 27/08/2013 21:09:19 :::
2 of 17 WP.5063.2013 courses in the ensuing academic year. The Petitioners appeared for the National Eligibility-cum-Entrance Test (`NEET') conducted by the National Board of Examinations, the Second Respondent to these proceedings.
3. In a recent judgment in Christian Medical College Vellore and others Vs. Union of India delivered on 18 July 20131, the Supreme Court held that the regulations under which the Medical Council of India (`MCI') and Dental Council of India (`DCI') introduced a single National Eligibility-cum-Entrance Test are ultra vires the Constitution on the ground that they have the effect of denying state run universities and all medical colleges and institutions from admitting students to M.B.B.S., B.D.S. and postgraduate (`PG course') courses according to their own procedures which has been held to be an integral facet of the right to administer. Moreover, it has been held that MCI is not empowered by the Indian Medical Council Act, 1956 to actually conduct the NEET. In the penultimate paragraph of the judgment, the Supreme Court has issued the following directions :
"163. ... ... ... This will not, however, invalidate actions so far taken under the amended Regulations, including the admissions already given on the basis of the NEET conducted by the Medical Council of India, the Dental Council of India and other private medical institutions, and the same shall be valid for all purposes." (emphasis supplied) 1 Transfer Case (Civil) No.98 of 2012 and connected batch of matters ::: Downloaded on - 27/08/2013 21:09:19 ::: 3 of 17 WP.5063.2013 Hence, actions which were taken on the basis of the NEET, including admissions granted would be valid for all purposes.
4. A brief background would be necessary. MCI had sought to bring in a regime where there would be a national, common entrance test for admissions to medical courses. MCI issued on 21 December 2010 the Postgraduate Medical Education (Amendment) Regulations, 2010 (Part-II). On 15 February 2012 a notification was issued by the MCI by which the Postgraduate Medical Education (Amendment) Regulations, 2012 (Part-I) were notified. A batch of transfer petitions was filed before the Supreme Court in which the regulations framed, inter alia, by MCI for the introduction of NEET were challenged.
Similar regulations of the Dental Council were also challenged. On 13 December 2012, an interim direction was issued by the Supreme Court under which among others, the MCI, the States and other institutions were permitted to conduct their respective examinations for the M.B.B.S; B.D.S and postgraduate courses subject to the condition that the results of the examinations would not be declared until further orders of the Court. On 13 May 2013 the Supreme Court lifted the restraint that was imposed by the earlier order dated 13 December 2013 and allowed the results of the examinations, which had already been conducted, to be declared, to enable the students to apply for admissions for the ensuing academic year. In this background, while disposing of the batch of petitions finally, the Supreme Court in its judgment dated 18 July 2013 directed, as extracted above, that though the regulations framed by MCI for holding an NEET were ultra vires, this would not invalidate the ::: Downloaded on - 27/08/2013 21:09:19 :::
4 of 17 WP.5063.2013 actions taken under the amended regulations including the admissions already given on the basis of the NEET conducted by MCI, the Dental Council of India and other private medical institutions, which would be valid for all purposes.
5. The Government of Maharashtra did not hold a separate examination of its own for admissions to P.G. medical seats after the interim order of Supreme Court dated 13 December 2012. The State Government has consequently relied upon the results of the NEET conducted by National Board of Examination. Fifty percent of the P.G. seats in Government run colleges and Municipal colleges are filled in through an all India quota while the remaining fifty percent are set apart for the State quota. The admissions for the all India quota have already been completed. The process of admissions for seats in the State quota has commenced and the first round has been held. The Court has been informed that all the seats have been filled.
A further round of counseling is to take place on 28 and 29 July 2013 for the allotment of seats in the event that any seats remain vacant at the end of the first round.
6. The present case relates to those P.G.seats in the State quota which are set apart for in-service candidates of the Government of Maharashtra. There are 82 seats available for in-service candidates.
7. The Postgraduation Medical Education (Amendment) Regulations, 2012 (Part-I) which were notified on 15 February 2012 prescribe the following norms for eligibility for P.G.medical admissions :
::: Downloaded on - 27/08/2013 21:09:19 :::5 of 17 WP.5063.2013 "In order to be eligible for admission to any postgraduate course in a particular academic year, it shall be necessary for a candidate to obtain minimum of marks at 50th percentile in `National Eligibility-cum-
Entrance Test for Postgraduate courses' 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 40 th percentile. In respect of candidates as provided in clause 9(II) above with locomotory disability of lower limbs, the minimum marks shall be at 45th percentile.
The percentile shall be determined on the basis of highest marks secured in the All India common merit list in `National Eligibility-cum-Entrance Test' for Postgraduate courses :
Provided when sufficient number of candidates in the respective categories fail to secure minimum marks as prescribed in National Eligibility-cum-Entrance Test held for any academic year for admission to Postgraduate courses, the Central Government in consultation with Medical Council of India may at its discretion lower the minimum marks required for admission to Postgraduate course for candidates belonging to respective categories and marks as lowered by the Central Government shall be applicable for the said academic year only."
8. The Regulations of 2012 which were notified on 15 February 2012 prescribe a norm of eligibility which is that a candidate must obtain marks of at least the 50th percentile in the NEET. For physically challenged candidates, the eligibility requirement was marks at the 45th percentile. For Scheduled Caste, Scheduled Tribe and Other Backward Class candidates, the eligibility was defined at the 40th percentile. A percentile rank represents the percentage of ::: Downloaded on - 27/08/2013 21:09:19 ::: 6 of 17 WP.5063.2013 candidates that fall below a given score. For example, a percentile of 75 would mean that the candidate has secured higher than 75% of the total NEET-P.G. test takers. This was explained in the frequently asked questions appended to the information bulletin of the National Board of Examinations.
9. The proviso as extracted earlier, however, stipulates that when a sufficient number of candidates in the respective categories fail to secure minimum marks as prescribed in the NEET, the Central Government, in consultation with MCI, may, at its discretion, lower the minimum marks required for admission for the candidates belonging to the respective categories for that academic year.
10. By the same notification dated 15 February 2012 a provision has been made so as to allow an addition of ten percent of marks obtained in the NEET for each year of service rendered by candidates in the service of the Government or a public authority in remote or difficult areas subject to a maximum of 30 percent of the total marks obtained in the NEET. The provision in that regard is as follows :
"Provided that in determining the merit of candidates who are in service of Government/public authority, weightage in the marks may be given by the Government/Competent Authority as an incentive at the rate of 10% of the marks obtained for each year of service in remote and/or difficult areas upto the maximum of 30% of the marks obtained in National Eligibility-cum-Entrance Test, the remote and difficult areas shall be as defined by State Government/Competent Authority from time to time."::: Downloaded on - 27/08/2013 21:09:19 :::
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11. This provision for the addition of incentive marks for in-service candidates for every year of service rendered in remote or difficult areas is an enabling provision. Each State Government is vested with the authority to allow the addition of such incentive marks. The State Government was also permitted to define what would constitute `remote and difficult areas' in relation to the State. In the State of Maharashtra, a government resolution was issued on 3 May 2011 under which in-service candidates were allowed a benefit of 10 percent incentive marks subject to an upper limit of thirty percent marks for service rendered in remote or difficult areas, tribal areas and naxalite affected areas of the State.
12. On 31 May 2013 the Union Government in the Ministry of Health and Family Welfare addressed a communication to the Board of National Examinations in the following terms :
"I am directed to refer to the representation of the SC/ST students received from National Commission for Scheduled Caste in which it has been stated that despite of scoring 50% marks or more in NEET-PG, 2013 they are unable to qualify the exam as their percentile is less than 40 as prescribed. This Ministry has examined the result declared by National Board of Examination (NBE) and it has been found that the students securing marks above 40% in case of SC/ST/OBC have not been reflected in the qualifying list.
As per the PG Medical Education regulations amendment dated 15.2.2012, Central Government in consultation with MCI has relaxed the qualifying percentile so that the student of SC/ST/OBC who have secured 40% or above marks, UR/PH 45% or above and UR 50% or above respectively are qualified for ::: Downloaded on - 27/08/2013 21:09:19 ::: 8 of 17 WP.5063.2013 admission to Post Graduate courses.
It is therefore requested to declare the result accordingly. The percentile relaxed by the Central Government shall be applicable for the admission of PG Courses of this academic year i.e. 2013-2014 only."
Prior to the issuance of this communication, the Central Government had addressed a communication to the MCI seeking its no objection. The communication stated that the results of the NEET for P.G. courses had been declared and on an examination of the results it was found that candidates belonging to SC/ST categories who had secured even 40% marks had not been able to qualify because of the percentile which was higher than the cut off fixed. The MCI granted its consent upon which on 31 May 2013 the Union Government issued its communication to the National Board of Examinations, as noted above.
13. The Petitioners are aggrieved by the decision of the Union Government dated 31 May 2013 and seek the following reliefs :
(i) A declaration that candidates belonging to the reserved categories, who have secured marks only at the 40 th percentile, would be eligible to pursue P.G.medical courses;
(ii) A declaration of invalidity of the decision communicated on 31 May 2013 by the Union Government in the Ministry of Health and Family Welfare;::: Downloaded on - 27/08/2013 21:09:19 :::
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(iii) Setting aside of the revised list published by the National Board of Examinations following the relaxation granted by the Union Government;
(iv) A direction to the State of Maharashtra to prepare a list of candidates for admission to P.G.courses amongst candidates of the reserved category who have secured marks at least at the 40 th percentile and not to select any reserved candidate from the in-service category who has secured marks below the 40th percentile.
14. An affidavit-in-reply has been filed in these proceedings by the Deputy Secretary in the Union Ministry of Health and Family Welfare.
The affidavit states that initially on 13 December 2012, the Supreme Court by an interim order imposed a restraint on the declaration of the results of entrance examinations conducted by the MCI, BCI and by other States, universities and institutions. On 13 May 2013 the order of restraint was lifted. Following this, on 17 May 2013, the result of the NEET-PG was declared and an all India merit list (for all India seats) and a State wise list (for the States' quota) was prepared on the basis of marks obtained in the examination. Every candidate was awarded with a percentile rank along with a score (out of 1,200 marks). A representation was received by the Union Government from Scheduled Caste aspirants to consider relaxing the minimum percentile in exercise of the discretion conferred by the proviso to Clause-4 of the amended P.G.Regulations published on 15 February 2012. Representations were also received through the National Commission for Scheduled Castes where it was stated that a number of SC/ST ::: Downloaded on - 27/08/2013 21:09:19 ::: 10 of 17 WP.5063.2013 candidates who had secured even more than 50 percent of the total marks, were not within the 40th percentile and were not eligible for counseling for admission to P.G.medical courses. The affidavit states that a number of State Governments had conducted their own P.G. Entrance Tests for filling up the State quota of P.G.seats. A student who had appeared in the NEET-PG would be eligible for P.G.counseling only if he or she had secured marks at a minimum of the 50th percentile for open category candidates, at the 45th percentile for the physically challenged and at the 40th percentile for the SC/ST/OBC candidates. As a result, a candidate, even if he or she has secured 50 percent marks in the open category, 45 percent marks in the physically challenged category and 40 percent marks in the SC/ST/OBC category, would be ineligible for want of qualification in terms of the percentile. In order to obviate this discrimination, the Ministry, in consultation with MCI, exercised discretion under the proviso to the amended Regulations of 2012 and relaxed the qualifying percentile so that the students belonging to the reserved category, who had secured 40 percent or more marks, those in the physically challenged group who had secured 45 percent marks and above, and open category candidates with 50 percent or above, would be qualified for admission for P.G.courses. Following this, the National Board of Examinations published a revised result on 4 June 2013. It has been submitted that the Union Government has only revised the qualifying percentile and the criteria of merit remains the same as before namely the marks obtained in NEET. Lowering of percentile, it has been urged, does not prejudice the Petitioners as admission to P.G. courses is not given on the basis of percentile but on the basis of marks obtained in NEET.
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15. An affidavit-in-reply has also been filed by the National Board of Examinations.
16. The following submissions have been urged on behalf of the Petitioners in support of the petition :
(i) Under the proviso to Clause-4 of the amended Regulations of 2012, a relaxation of the minimum percentile required for eligibility is permissible only when a sufficient number of candidates in the respective categories fail to secure minimum marks.
In the present case, the number of candidates who had qualified was more than the number of seats available and hence there was no occasion to relax the eligibility requirement;
(ii) There was no consultation in law with the MCI. A communication was addressed on 31 May 2013 to MCI by the Union Ministry of Health and Family Welfare. Since MCI is under the control of an administrator, Section 3B of the Indian Medical Council Act, 1956 requires consultation with the Governing Board of MCI. In the present case, MCI communicated its consent on the same day on which the communication of the Union Government was addressed to it. The Governing Board would not have been convened for consultation at such short notice. Hence, there was no effective consultation as required by law;
(iii) Even while exercising the power of relaxation, there ::: Downloaded on - 27/08/2013 21:09:19 ::: 12 of 17 WP.5063.2013 cannot be a wide gap between the marks prescribed as cut off marks and those that are reduced.
17. While dealing with these submissions, we must at the outset preface our analysis by emphasizing the background involving the holding of the NEET for medical admissions for academic year 2013-
14. The Supreme Court had been seized of a batch of matters challenging the constitutional validity, inter alia, of the amended regulations of MCI as well as the authority of MCI to conduct a national entrance test, inter alia, for admissions to P.G.medical courses. On 13 December 2012 the Supreme Court had restrained the declaration of results. However, the Medical Council, Dental Council and the States, Universities and other institutions were allowed to conduct their examinations for the M.B.B.S; B.D.S; and P.G. courses. This order of restraint was lifted on 30 May 2013. In the meantime, as a matter of fact, the expectation that there would be one common entrance test across the country for P.G. medical admissions, has not been fulfilled. All State Governments have not accepted the NEET.
As the affidavit-in-reply states before the Court, a number of State Governments have conducted their own entrance tests for filling up the state quota P.G. seats. Now it is in this background that this Court must take note of the binding direction of the Supreme Court that the setting aside of the regulations and the ruling that MCI does not have the statutory power to actually conduct the NEET, shall not "invalidate actions so far as taken under the amended Regulations"
including the admissions already given on the basis of the NEET. The Supreme Court has held that "the same shall be valid for all ::: Downloaded on - 27/08/2013 21:09:19 ::: 13 of 17 WP.5063.2013 purposes". Now, one of the actions which was admittedly taken during the pendency of the proceedings before the Supreme Court is the decision of the Union government in the Ministry of Health and Family Welfare to relax the eligibility percentile as prescribed in the substantive part of Clause-4 of the Amending Regulations of 2012 notified on 15 February 2012. This action was completed before the judgment of the Supreme Court was delivered on 18 July 2013. The revised merit list of the students was also declared and published by the National Board of Examinations on 4 June 2013. In this background, the direction contained in the judgment of the Supreme Court delivered on 18 July 2013 must be given full effect. As a result, actions which have been taken until the date of the judgment under the amended Regulations have to be regarded as valid for all purposes. The directions issued by the Supreme Court in exercise of powers conferred by Article 142 of the Constitution, bind this Court.
18. We are not inclined at this stage to interfere in the admissions' process for in-service candidates seeking admission under the State quota. Basically it is essential to bear in mind that NEET prescribes first, a criterion of eligibility and second a methodology for the preparation of a merit list. The criterion of eligibility is the minimum percentile which a candidate must attain in order to be eligible. For candidates from the open category, it is the 50 th percentile, for physically challenged candidates the 45th percentile and for the candidates from SC/ST/OBC categories the 40th percentile before the relaxation took effect. The proviso referred to earlier contemplates that if a sufficient number of candidates is not available, the minimum ::: Downloaded on - 27/08/2013 21:09:19 ::: 14 of 17 WP.5063.2013 marks as prescribed for a particular category can be lowered. The Petitioners have contended before the Court that the expression "sufficient number of candidates" must mean a number of candidates equivalent to the number of seats which are required to be filled up. This, in our view, is not the only possible view which can be taken of the expression "sufficient number of candidates in the respective categories". Sufficiency can also legitimately be defined or considered with reference to the zone of consideration. In any process of competitive selection, the number of candidates to be considered must optimally exceed the number of vacancies. That is the genesis of the doctrine of the zone of consideration. In fact, on 7 June 2013, the National Board of Examinations issued a public notice stating that under the policy guidelines of its medical counseling committee, a total number representing five times the number of vacancies available is only eligible for participating in the counseling process. The National Board has accordingly indicated the last rank category-wise in respect of candidates falling in different categories.
19. Moreover, it must be noted that for the ensuing academic year, 2013-14, a national and common entrance test for P.G. medical admissions has not taken place since many States, as noted earlier, have held their own tests for admission to the state quota. Under the proviso, strictly speaking, a determination as to whether a sufficient number of students is available would have to be made on the basis that all the States have adopted the NEET. This basic expectation has not been fulfilled for the current year. In this background, a considered decision was taken by the Union Government to relax the ::: Downloaded on - 27/08/2013 21:09:19 :::
15 of 17 WP.5063.2013 minimum percentile prescribed to ensure a level playing field and to obviate a discrimination between students belonging to the same category in different States.
20. The Petitioners are all in-service candidates. Despite the relaxation which has been granted by the Union Government, the merit list according to which admissions are granted to P.G. medical courses, is prepared on the basis of the total marks obtained in the NEET. For in-service candidates in the State of Maharashtra, this is after taking into account the additional marks which are allotted on the basis of the amended Regulations of 2012 to in-service candidates of the Government who have worked in remote or difficult areas. The State of Maharashtra has issued a government resolution dated 3 May 2011. The real grievance of the Petitioners is that as a result of the weightage which has been given to service rendered in difficult or tribal areas, other candidates who have become eligible as a result of the relaxation, would have secured higher marks than the Petitioners and would be better placed for admission. The Petitioners cannot possibly have a grievance about this. An enabling provision has been made in the amended Regulations of 2012 for the grant of such additional marks as an incentive to in-service candidates who have rendered service in difficult areas. It is common knowledge that medical doctors are not available to work in an adequate number in remote and difficult areas of the State. Many of those areas are inhabited by tribal populations with little or no access to medical care. The needs of this segment of the community are paramount. Tribal areas suffer from malnutrition, higher rates of infant mortality ::: Downloaded on - 27/08/2013 21:09:19 ::: 16 of 17 WP.5063.2013 and from a lack of maternal health. The grant of incentive marks is intended to ensure that many more doctors in service render medical aid in these difficult areas. Several other areas are affected by naxalite activities. The admissions which have to be granted by the State Government are being granted strictly on the basis of merit. There is no lowering of the requirement of merit in the preparation of the merit list or in granting admissions, as contemplated in the judgment of the Supreme Court in Dr.Preeti Srivastaava and another Vs. State of Madhya Pradesh and others2. The same standard of merit applies to all students and their relative position in the merit list depends on the marks obtained in the NEET. The first and third submission therefore, are devoid of merit.
21. For these reasons, we are of the view that consistent with the law which has been laid down by the Supreme Court and the directions which were issued in the concluding part of the judgment which has been delivered on 18 July 2013, a degree of repose is necessary in regard to admissions to P.G. courses for the ensuing year.
The admissions process has been substantially completed in the State of Maharashtra. It would now be most inappropriate for the Court to interfere so as to affect the process of admissions which has now attained a substantial progress towards completion. The revised merit list on the basis of which admissions are being granted was notified before the judgment of the Supreme Court.
22. Finally, the submission as regards the validity of the consultation carried out with MCI cannot be entertained in these 2 (1999)7-SCC-120 ::: Downloaded on - 27/08/2013 21:09:19 ::: 17 of 17 WP.5063.2013 proceedings. MCI is not a party to these proceedings. No request for impleadment has been made. The nature of the consultative process carried on by or within MCI cannot be determined in its absence.
23. In the circumstances, following the mandate of the judgment of Supreme Court that actions which were taken until the date of the judgment shall be valid for all purposes, we see no reason to interfere. The petition shall accordingly stand dismissed. There shall be no order as to costs.
24. In view of dismissal of the writ petition, Civil Application No.1575 of 2013 does not survive and stands disposed of as such.
(DR.D.Y.CHANDRACHUD, J.) (S.C.GUPTE, J.) MST ::: Downloaded on - 27/08/2013 21:09:19 :::